This Real Estate Indemnity Release Agreement involves
Title: MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Governing Law: Washington Date: 3/3/2005
Industry: Computer Services Law Firm: Latham Watkins LLP
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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”);
2. THOMAS R. DREILING, on behalf of InfoSpace (“Dreiling”);
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”);
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;
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.”
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.
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