EXHIBIT 10.2
------------
CAUSE NO 2003-CI-19967
ATSI COMMUNICATIONS, INC., ) IN THE DISTRICT COURT
(DELAWARE), )
)
Plaintiff, )
)
vs. )
)
XXXXX X. XXXXXX, XXXXXXX X. ) 407TH JUDICIAL DISTRICT
XXXXXX, TEXAS WORKFORCE )
COMMISSION, ATSI COMMUNICA- )
TIONS, INC. (TEXAS), ATSI COMMU- )
NICATIONS, INC. and XXXXXX X. )
XXXXXXX, )
)
Defendants. ) BEXAR COUNTY, TEXAS
SETTLEMENT AGREEMENT (AT MEDIATION)
-----------------------------------
The parties hereto agree on this 28th day of March 2005, that this lawsuit
and all claims and controversies between them are hereby settled and resolved in
their entirety in accordance with the following terms of this Settlement
Agreement:
The parties acknowledge that bona fide disputes and controversies exist
between them, both as to liability and the amount thereof, if any, and by reason
of such disputes and controversies they desire to compromise and settle all
claims and causes of action of any kind whatsoever which the parties have or may
have arising out of the transaction or occurrence which is the subject of this
litigation. It is further understood and agreed that this is a compromise of a
disputed claim, and nothing contained herein shall be construed as an admission
of liability by any party, all such liability being expressly denied.
Each signatory hereby warrants and represents that such person has
authority to bind the party or parties for whom such person acts; and the
claims, suits, rights, and/or interest which are the subject matter hereto are
owned by the party asserting same, have not been assigned, transferred or sold,
and are free of any encumbrance.
THIS SETTLEMENT AGREEMENT IS
----------------------------
NOT SUBJECT TO REVOCATION
-------------------------
The handwritten portions of this Settlement Agreement shall control and
supersede any conflict with the printed portion. The terms of this Settlement
Agreement are as follows:
1. In full and complete compromise and settlement of all claims by and
between the parties, including those that are the subject of Cause No.
2003-CI-19967 and the Counterclaims asserted therein, including all
attorney's fees and costs, ATSI Communications, Inc. (Nevada f/k/a
Delaware) (hereinafter "ATSI") shall pay the equivalent of $90,000.00 to
Defendants Xxxxxx and Xxxxxx, pro-rata based upon the amount of their
respective allowed TWC claim. This sum shall be payable in ATSI stock, in
the number of shares that is the result of dividing the sum of $90,000.00
by the average closing price of said stock from Tuesday, March 29, 2005 to
next Tuesday, April 5, 2005. Such stock which shall be publicly traded ATSI
common stock, shall be issued directly to Defendants Xxxxxx and Xxxxxx or
for their account in six equal monthly installments, beginning on April 15,
2005, with each such installment being an amount of shares equal to 1/6 of
the aggregate amount of such shares. The shares delivered in each such
installment will be unrestricted and freely tradable when delivered.
2. This settlement and compromise is subject to the approval of the
Board of Directors of ATSI, but such approval will be recommended by
Xx. Xxxxx.
Except for the agreements set forth herein, Defendants Xxxxxx and Xxxxxx hereby
agree to forever release and discharge ATSI and its affiliates and any related
party from any and all claims, demands, or suits, known or unknown, fixed or
contingent, liquidated or un-liquidated, whether or not asserted in the above
case, as of this date, arising from or related to the events and transactions
which are the subject matter of this cause. This release runs to the benefit of
all attorneys, agents, employees, insurers, officers, directors, shareholders,
partners, heirs, assigns, and legal representatives of XXXX. The parties
further agree to present an Agreed Motion for or Stipulation to Dismissal with
Prejudice to the Court, along with an Agreed Order of Dismissal (or Non-suit)
with Prejudice.
The parties contemplate a more comprehensive compromise settlement
agreement and releases. Counsel shall promptly deliver drafts of such further
documentation, and on April 15, 2005, if necessary a closing of this settlement
transaction shall occur and all further documents shall be executed and
exchanged. The parties and their counsel agree to fully cooperate in the
drafting and execution of such additional documents as are reasonably necessary
to implement the provisions and spirit of this Settlement Agreement.
Notwithstanding any such additional documents, the parties confirm that this is
a written Settlement Agreement as contemplated by Section 154.071 of the Texas
Civil Practice and Remedies Code, is a complete, valid and binding contract, is
intended to be an enforceable agreement as contemplated by Rule 11, Texas Rules
of Civil Procedure, is hereby "filed" with the Court through this Mediator and
may be used as the basis for a motion for judgment, motion for summary judgment,
motion to enforce, or a suit on this agreement, with each party waiving all
rights to a jury trial. The Court is specifically authorized, in its
discretion, to incorporate the terms of this agreement in its final decree
disposing of this case.
If any dispute arises with regard to the interpretation and/or performance
of this Agreement or any of its provisions, the parties agree to submit any such
dispute to the Mediator who facilitated this settlement, as Arbitrator, for
final and binding arbitration. If arbitration is brought to construe or enforce
this Agreement, the prevailing party shall be entitled to recover attorney's
fees as well as court costs and expenses, and fees of the mediator and
arbitrator.
Although the Mediator has provided this form and has drafted this
Settlement Agreement for the parties as a courtesy to facilitate the final
resolution of this dispute, the parties and their counsel have thoroughly
reviewed such outline and have, where necessary, modified it to conform to the
terms of their agreement. All signatories to this Settlement Agreement hereby
release the Mediator from any and all responsibility arising from the drafting
of this Settlement Agreement, and by signing this Settlement Agreement
acknowledge that they have been advised by the Mediator in writing that this
Settlement Agreement should be independently reviewed by counsel before
executing the Agreement. The parties and their counsel expressly agree that the
Mediator shall not be called as a witness in the event of any dispute over this
Settlement Agreement or otherwise, in accordance with Section 154.073 of the
Civil Practice and Remedies Code, and further agree that in the event any
attempt is made to call the Mediator as a witness, the Mediator shall be a)
compensated for all of his time involvement (at his then-applicable rate) in any
way caused by or relating in any way thereto, and b) reimbursed all attorney's
fees, expenses and costs incurred in connection therewith or pertaining in any
way thereto.
This Settlement Agreement may be executed in counterparts and by facsimile
copies and is made and performable in Bexar County, Texas, and shall be
construed in accordance with the laws of the State of Texas.
ATSI COMMUNICATIONS, INC.
(NEVADA f/k/a DELAWARE)
/S/ Xxxxx X. Xxxxxx
----------------------
XXXXX X. XXXXXX
By: /S/ Xxxxxx X. Xxxxx
-------------------
XXXXXX X. XXXXX
Title: President and CEO
/S/ Xxxxxxx X. Xxxxxx
---------------------
XXXXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx, /S/ Royal X. Xxx
------------------- ----------------
XXXX X. XXXXXX, ESQ. ROYAL X. XXX, III, ESQ,
COUNSEL FOR PLAINTIFF COUNSEL FOR XX. XXXXXX
ATSI COMMUNICATIONS, INC. AND XX. XXXXXX
(NEVADA f/k/a DELAWARE)
