Exhibit 10.23
MUTUAL RELEASE AND SETTLEMENT
AGREEMENT
PARTIES
This Mutual Release and Settlement
Agreement (“Agreement”) is made by the following
parties:
1. INFOSPACE, INC. and THE SPECIAL
LITIGATION COMMITTEE OF THE BOARD OF DIRECTORS OF INFOSPACE, INC.
(collectively, “InfoSpace”);
—and—
2. THOMAS R. DREILING, on behalf of
InfoSpace (“Dreiling”);
—and—
3. NAVEEN JAIN and ANURADHA JAIN,
husband and wife, and their marital community;
4. RUFUS W. LUMRY, III, his marital
community, and ACORN VENTURES IS, LLC;
5. JOHN E. CUNNINGHAM, IV, his
marital community, and CLEAR FIR PARTNERS LP;
6. DAVID HOUSE, and his marital
community;
7. PETER L. S. CURRIE, and his
marital community;
8. GARY C. LIST, and his marital
community;
9. BERNEE D. L. STROM, and her
marital community;
10. CARL STORK, and his marital
community;
11. ELLEN ALBEN, and her marital
community;
12. TAMMY D. HALSTEAD, and her
marital community;
13. ARUN SARIN, and his marital
community;
14. ASHOK NARASIMHAN, and his
marital community;
15. RUSSELL C. HOROWITZ, his marital
community, and PORPOISE CORPORATION;
16. JOHN KEISTER;
17. RICHARD THOMPSON, and his
marital community;
18. DOUGLAS BEVIS, and his marital
community;
19. THE BEVIS FAMILY TRUST AND ITS
BENEFICIARIES AND ITS SUCCESSOR IN INTEREST, BFT VENTURES,
LLC;
20. RASIPURAM ARUN, and his marital
community;
21. EDMUND O. BELSHEIM, and his
marital community;
22. KELLETT PARTNERS LP, KELLETT
FAMILY PARTNERS LP, KELLETT INVESTMENT CORP., STILES A. KELLETT
JR., and his marital community (collectively
“Kellett”);
—and—
23. Certain Underwriters at
Lloyd’s, London Subscribing to Excess Directors and Officers
and Company Reimbursement Indemnity Insurance Policy No. SIS018,
which was issued to InfoSpace, Inc. (“Twelfth Excess
Policy”);
24. Great American Fidelity
Insurance Company, which issued Policy Nos. TDX2533941 and
TDX2533942 to InfoSpace, Inc. (the “Third Excess
Policies”) and Great American Alliance Insurance Company,
which issued Policy No. TDX3567828 to InfoSpace, Inc.
(“Thirteenth Excess Policy”) (collectively, the
“Great American Insurance Companies”);
25. GAINSCO, which issued Policy No.
DX0000004 to InfoSpace, Inc. (“Fourteenth Excess
Policy”);
26. Philadelphia Indemnity Insurance
Company, which issued Policy No. HEX0000689/REX0000689 to
InfoSpace, Inc. (“Fifteenth Excess Policy”);
27. Clarendon National Insurance
Company, as reinsurer of United Capitol, which issued Policy No.
DOL1001587 to InfoSpace, Inc. (“Sixteenth Excess
Policy”);
28. Clarendon America Insurance
Company, which issued Policy Nos. MAG2470015810000,
MAG2470015910000 (“First Excess Policies”),
MAG2470003710 (“Eleventh Excess Policy”) and
MAG2470003810 (“Seventeenth Excess Policy”) to
InfoSpace, Inc.;
29. TIG Insurance Company, which
issued. Policies No. XDO38001928 (“Sixth Excess
Policy”) and Policy No. XDO38001929 (“Tenth Excess
Policy”) to InfoSpace, Inc;
—and—
30. Intelius, Inc.
(“Intelius”);
31. Kevin Marcus
(“Marcus”).
All of the individuals, marital
communities and entities identified above in numbers 1 through 31
are collectively referred to as the “Parties.” The
individuals, marital communities and entities identified in numbers
3 through 22 are collectively referred to as the
“Defendants.” InfoSpace, Inc. and the individuals (but
not their marital communities or entities) identified in numbers 3
through 21 are collectively referred to as the
“Insureds.” Naveen and Anuradha Jain are collectively
referred to as the “Jain Defendants” or
“Jains.” The individuals, marital communities and
entities identified in numbers 4 through 22 are collectively
referred to as “Other Defendants.” The entities
identified in numbers 23 through 29 will be collectively referred
to as the “Carriers.”
RECITALS
A. Dreiling commenced a shareholder’s
derivative action on behalf of InfoSpace against Defendants and
others. That derivative suit is pending in King County Superior
Court in the State of Washington under Cause No. 01-2-08155-1 SEA
and will be referred to as the “State Derivative
Suit.”
B. Dreiling brought an action on behalf of
InfoSpace against the Jain Defendants and others seeking recovery
under Section
16(b) of the Securities Exchange
Act of 1934, as amended. That action was
commenced in the United States District Court for the Western
District of Washington under Cause No. C01-1528P. That action was
resolved in Dreiling’s favor by entry of a judgment, which is
presently on appeal to the United States Court of Appeals for the
Ninth Circuit under Cause Nos. 03-35710 and 03-35785. That District
Court action against the Jain Defendants and the appeal will be
referred to as the “Section 16(b) Suit.” Collectively,
the Section 16(b) Suit and the State Derivative Suit will be
referred to as the “Suits” or “Either
Suit.”
C. On August 15, 2003, the Jain Defendants filed a
declaratory relief action against InfoSpace and the Carriers along
with other insurance carriers that provided Directors and Officers
liability coverage to InfoSpace, Inc., regarding the Jain
Defendants’ rights, if any, under InfoSpace’s Directors
and Officers liability policies in connection with the Section
16(b) Suit. This declaratory relief action is pending in King
County Superior Court in the State of Washington under Cause No.
03-2-32427-2 SEA, and was originally styled Jain v. General
Star, et al ., but was later re-captioned Jain v. Clarendon
America Insurance Company, et al . This action is referred to
as “ Jain v. Clarendon .” As discussed more
fully below in paragraph (1)(b), Jain v. Clarendon was
subsequently consolidated with two other actions.
D. In September 2004, all Parties to this Agreement
entered into lengthy mediation sessions with the Honorable Edward
A. Infante serving as mediator (“Mediation”).
Mediation, with Judge Infante’s assistance, continued until
the end of October 2004. Discussions between the Parties continued
into December of 2004 and subsequently led to this Agreement, the
terms of which are set forth below.
E. This Agreement and the performance of the
obligations referred to herein are not, and should not be construed
as, an admission of wrongdoing or insurance coverage by any
Defendant or Carrier, as the case may be. The Parties agree and
acknowledge that this Agreement is entered into for the sole
purpose of resolving
contested claims and disputes as well as
avoiding the substantial costs, expenses, and uncertainties
associated with such claims and disputes. Except to the extent, if
any, contradicted by this Agreement, any prior settlement agreement
previously entered into by any of the Parties shall remain in full
force and effect.
AGREEMENT
1.
Consideration. The
Parties have reached a settlement with a minimum value, to
InfoSpace, of $139.4 million. The settlement consideration consists
of cash, releases, and a limited indemnity agreement, as detailed
in paragraphs 1(a) and (b) below:
(a) InfoSpace shall receive total
cash consideration of $114.4 million (“Settlement
Fund”) in settlement of the Suits, as follows: (1) The Jain
Defendants shall pay $3 million to settle the State Derivative Suit
and $65 million to settle the Section 16(b) Suit, for a total of
$68 million; (2) Other Defendants collectively shall pay a total of
$3.4 million to settle the State Derivative Suit, and
responsibility for payment of that $3.4 million is allocated among
Other Defendants in accordance with the proposal made by the
Honorable Edward A. Infante; and (3) The Carriers, on behalf of the
Insureds, collectively shall pay $43 million to resolve all claims
against the Insureds in both the Suits. All Parties making payments
into the Settlement Fund as set forth in this paragraph 1(a) will
be referred to collectively herein as “Payors.” The
Carriers’ payments shall be funded by the exhaustion of the
Eleventh Excess Policy through the Fifteenth Excess Policy, plus $8
million under the Sixteenth Excess Policy.
(i) All payments to the Settlement
Fund shall be made to an interest-bearing escrow/depository account
maintained by Sirianni Youtz Meier & Spoonemore at Frontier
Bank, Seattle, Washington or another banking institution mutually
agreed to by the Parties (“Escrow”), and must be
deposited into Escrow, in good funds, no later than fourteen (14)
days after entry of the second of the two orders
initially approving the settlement and this
Agreement by the Courts in the Suits as set forth in paragraph 3,
with the exception that $200,000 of the cash consideration shall be
paid by Kellett directly to InfoSpace (on notice to all Parties)
within one (1) year after final approval of this Agreement (as
defined in paragraph 3), and shall be secured in the interim by a
note and/or other security acceptable to InfoSpace, the form of
such security to be agreed upon between Kellett and InfoSpace.
Should Kellett fail to provide the noted cash contribution to
InfoSpace, the remainder of this Agreement will survive in full
force and effect irrespective thereof. If Final Approvals of this
Settlement are denied by entry of a final order in Either Suit, the
cash consideration, plus all accrued interest, shall be returned to
the respective Payors, and this entire Agreement shall be null and
void.
(ii) Frontier Bank or another
banking institution mutually agreed to by the Parties (the
“Escrow Agent”) may invest the Settlement Fund in
instruments backed by the full faith and credit of the United
States Government or fully insured by the United States Government
or an agency thereof and shall reinvest the proceeds of the
instruments as they mature in similar instruments at their
then-current market rates. The Escrow Agent shall bear all risks
related to investment of the Settlement Fund.
(iii) The Escrow Agent shall not
disburse the Settlement Fund except as set forth in Paragraph 8 of
the Agreement, by an order of the Federal Court, or with the
written agreement of counsel for all Payors.
(iv) Subject to further order(s)
and/or direction as may be made by the Federal Court, the Escrow
Agent is authorized to execute such transactions on behalf of
InfoSpace as are consistent with the terms of the
Agreement.
(v) All funds held by the Escrow
Agent shall be deemed and considered to be in custodia legis
of the Federal Court, and shall remain subject to the jurisdiction
of the Federal Court, until such time as such funds shall be
distributed pursuant to the Agreement and/or further order(s) of
the Federal Court.
(vi) Interest accrued in the Escrow
Account shall be paid on a pro rata basis to the eventual
recipients of the funds. Taxes on any interest earned shall be paid
by the Escrow Agent, or by the recipients of the funds, as required
by law.
(vii) The Parties shall agree upon
escrow instructions to the Escrow Agent not inconsistent with this
Agreement and any disputes concerning such instructions shall be
resolved by binding arbitration pursuant to paragraph 6.
(b) As detailed in this Agreement,
the Jain Defendants will: (1) dismiss with prejudice their claims
against InfoSpace, InfoSpace indemnitee Ellen Alben and the
carriers in three consolidated actions which include Jain v.
Clarendon, Jain v. InfoSpace, Inc., King County Superior Court,
Washington, Cause No. 03-2-34789-2 SEA and Jain v. Perkins Coie
LLP, King County Superior Court, Washington, Cause No.
04-2-01655-0 SEA (collectively, “Consolidated
Actions”), as detailed in paragraph 2, herein; (2) file with
the Court in the Consolidated Actions dismissals with prejudice
which dismiss all claims against all carriers named as defendants
therein, as detailed in paragraph 2(d); (3) release InfoSpace from
all claims in the InfoSpace, Inc. v. Jain, et al . action,
King County Superior Court Cause No. 03-2-19875-7 SEA, as appealed
(the “ Intelius Action”), as detailed in
paragraph 2(c) herein, and (4) indemnify InfoSpace to the extent
detailed in paragraph 5 herein. InfoSpace, Marcus, Intelius and the
Jain Defendants will also mutually release each other from all
claims and counterclaims in the Intelius Action. InfoSpace,
Inc., the Special Litigation Committee of the Board of Directors of
InfoSpace, Inc., Dreiling, and the Jain Defendants agree that: (i)
the releases by the Jain Defendants of InfoSpace and Ellen Alben in
the Consolidated Actions and of InfoSpace in the Intelius
Action, and the Jain Defendants’ agreement to indemnify
InfoSpace, have a value in excess of $25 million to InfoSpace; and
(ii) such value could not have been realized by judgments against
the Jain Defendants in the Section 16(b) Suit or State Derivative
Suit.
2. Mutual Release of
Parties.
(a) Except as set forth in
paragraphs 2(f) and 12 below, all Parties fully, finally, forever
and unconditionally mutually release to the fullest extent
permitted by law each and every other Party from any and all
claims, causes of action, demands, liabilities, suits, debts, dues,
promises, damages, judgments, or rights of recovery of each and
every kind, whether direct or derivative, at law or in equity,
including without limitation claims for indemnification,
contribution, equitable indemnity, defense, fees or costs,
negligence, misconduct, wrongful conduct, intentional wrongdoing,
bad faith, breach of contract, or otherwise, that they may have
had, or now have, arising out of, based upon, in connection with,
or in any way related to, the claims, facts, transactions, events,
occurrences, acts, disclosures, statements, omissions or failures
to act, of whatever kind or nature that were alleged, or that might
have been alleged, in the original complaints, or in an amended
complaint in Either Suit (each, a “Claim” and
collectively, the “Claims”), including, without
limitation, any claim that was or could have been asserted in
Either Suit by, on behalf of, or for the benefit of (i) Dreiling or
any other shareholder of InfoSpace which are of a derivative
nature, or (ii) InfoSpace. Notwithstanding the foregoing in this
paragraph 2(a), and without having any effect on the scope with
regard to the releases of the Carriers as set forth in
paragraph
2(d) herein: (i) certain Parties do not release
and specifically reserve claims identified in paragraph 2(f),
below; and (ii) the Parties do not release and specifically reserve
claims they may have against each other first arising after the
Effective Date of the Agreement that are not arising out of, based
upon, in connection with, or in any way related to claims that were
or might have been alleged in the Section 16(b) Suit, the State
Derivative Suit, the Intelius Action or the Consolidated
Actions. Within fourteen (14)
days after the conditions in paragraph 3, below,
are fulfilled, Dreiling shall dismiss his Claims against Deloitte
& Touche LLP (“Deloitte”) without prejudice, and
Dreiling covenants not to sue Deloitte derivatively on behalf of
InfoSpace in respect to any of the Released Claims as defined
below. This Agreement shall be deemed breached and a cause of
action shall be deemed to have accrued immediately upon the
subsequent commencement by Dreiling of any action on behalf of
InfoSpace against Deloitte in respect to any of the Released
Claims. Notwithstanding the foregoing, InfoSpace does not hereby
release any direct claims it may have against Deloitte, provided,
however, that pursuant to Title 10, Part IV, Chapter 63, Section
6304 of the Delaware Code (or any other applicable law), InfoSpace
agrees that its recovery of damages, if any, in a subsequent suit,
if any, against Deloitte or outside legal counsel for InfoSpace,
for claims that were or could have been asserted in the State
Derivative Suit against Deloitte or such legal counsel shall be
reduced to the extent of the pro rata share of such damages, if
any, attributable to the Defendants. The claims released by the
Parties pursuant to this Agreement will, collectively, be referred
to as the “Released Claims.”
(b) Without limiting the generality
of the foregoing, the Jain Defendants fully, forever and
unconditionally release all claims that were or could have been
asserted against InfoSpace or Ellen Alben in the Consolidated
Actions that relate in any way to the Section 16(b) Suit, any
claims in it and/or loss suffered or cost incurred by the Jain
Defendants in that suit. The Jain Defendants will file a stipulated
order of dismissal with prejudice and without costs of their claims
against InfoSpace and Ellen Alben in the Consolidated Actions
within three (3) business days after the conditions in paragraph
3(a), below, are satisfied. However, the Jain Defendants do not
release any claims against (i) Perkins Coie LLP, (ii) Wilson
Sonsini Goodrich & Rosati, P.C., (iii) J.P. Morgan Securities,
Inc. or Hambrecht & Quist LLC (collectively “J.P.
Morgan”), or (iv) Mellon Investor Services, LLC, or
ChaseMellon Shareholder Services,
LLC (collectively “Mellon”), all of
which claims are unaffected by the terms or existence of this
Agreement. InfoSpace and Ellen Alben fully, forever and
unconditionally release all claims that they asserted, or could
have asserted, against the Jain Defendants in the Consolidated
Actions.
(c) InfoSpace, the Jain Defendants,
Marcus and Intelius fully, forever and unconditionally mutually
release each other and their respective directors, officers,
employees, attorneys and agents from any and all claims that were
or could have been asserted in the Intelius Action.
InfoSpace, Marcus, Intelius and the Jain Defendants shall dismiss
the Intelius Action with prejudice and without costs within
fourteen (14) days after the conditions of paragraph 3(a), below,
are fulfilled.
(d) Without limiting the generality
of the foregoing, the Parties fully, finally, forever and
unconditionally release all Claims and claims against the Carriers,
whether under policies of insurance, or otherwise, for breach of
contract, for tortious conduct or bad faith, or otherwise, in
connection with any liability, whether contractual or
extracontractual, arising out of, based upon, in connection with or
in any way relating to the Released Claims, the Consolidated
Actions and/or the Mediation. Each of the Carriers fully, finally,
forever and unconditionally releases all Claims and claims against
the Parties in connection with any liability, whether contractual
or extracontractual, arising out of, based upon, in connection with
or in any way relating to the Released Claims, the Consolidated
Actions, and/or the Mediation. The Parties acknowledge that the
Eleventh Excess Policy through the Fifteenth Excess Policy,
identified above, and all underlying policies, are exhausted in
payment of Loss (as defined in the policies and under applicable
law), are released, and no further benefits whatsoever are owed
thereunder. The Jain Defendants shall dismiss with prejudice and
without costs their Claims and claims against all carriers named as
defendants, and the Carriers shall dismiss with prejudice and
without costs their Claims and claims,
counterclaims, cross-claims, or third-party
claims against any other Party, if any, in the Consolidated Actions
within three (3) business days after Final Approval and entry of
Final Judgments in the Section 16(b) and the State Derivative Suit,
as described in paragraph 3, below. In the interim, should that
present stay in the Consolidated Actions be lifted for any reason,
the Jain Defendants, InfoSpace, Alben and the Carriers shall
stipulate to a continued stay of all proceedings against InfoSpace,
Alben and the Carriers unless and until Final Approval of this
Agreement is denied.
(e) All Parties hereby expressly
waive and release any and all provisions, rights, and benefits
conferred by California Civil Code § 1542, which reads: 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; and all provisions, rights and
benefits conferred by any law of any state or territory of the
United States, or principle of common law, that are comparable or
equivalent to California Civil Code § 1542. All Parties
acknowledge that they may hereafter discover facts other than or
different from those that they know or believe to be true with
respect to the claims that are the subject matter of this
Agreement, but each Party hereby expressly waives and fully,
finally, and forever settles and releases all known or unknown,
suspected or unsuspected, contingent or non-contingent claims with
respect to the subject matter of this Agreement, whether or not
concealed or hidden, and without regard to the discovery or
existence of such additional or different facts. The terms of this
paragraph do not, however, extend to claims that are not arising
out of, based upon, in connection with, or in any way related to
claims that were or might have been alleged in the Section 16(b)
Suit, the State Derivative Suit, the Intelius Action or the
Consolidated Actions.
(f) The scope of the releases of the
Carriers is defined by paragraphs 2(a), 2(d), and 2(e) herein, and
is not altered, directly or indirectly, by this paragraph 2(f). The
following claims by and/or between the Jain Defendants and
InfoSpace are not released and are unaffected by the terms or
existence of this Agreement:
i. The Jain Defendants’ right
to seek indemnification or recovery from InfoSpace for any and all
losses, damages, liabilities, judgments, costs and expenses
incurred in connection with any claims asserted subsequent to the
effective date of this Agreement, but only to the extent that such
claims are not based on claims that were or could have been
asserted in the Section 16(b) Suit, the State Derivative Suit, the
Intelius Action, or the Consolidated Actions . The
scope of the releases by all Defendants other than the Jain
Defendants is defined by paragraphs 2(a), (d) and (e), and is not
altered, directly or by implication, by this
subparagraph;
ii. The Jain Defendants’
claims against InfoSpace, and any InfoSpace claims against the
Jains (including, without limitation, claims for indemnification or
recovery of any and all losses, damages, liabilities, judgments,
costs, monies, amounts and expenses) incurred in or in connection
with (a) the action