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Exhibit 10.18
CONFIDENTIAL FINAL SETTLEMENT
AGREEMENT
This
Confidential Final Settlement Agreement and Mutual Release
(“Final Settlement Agreement”) is made and entered
into on October 9, 2006, by and among American Interbanc
Mortgage, LLC (“American Interbanc”) and Bankrate,
Inc. (“Bankrate”), and in light of the following
facts:
A.
American
Interbanc brought Case No. 02 CC 04857 in the Superior Court
for the State of California, County of Orange, against
Bankrate and other defendants (the “Action”).
Bankrate has filed answers denying all claims asserted by
American Interbanc in the Action and asserting various
affirmative defenses.
B.
The
parties hereto, without either side admitting liability, or
admitting the allegations made by the other, have agreed to
settle the Action, on the terms set forth in this Final
Settlement Agreement.
C.
This
Final Settlement Agreement restates and supercedes the
parties’ settlement discussions and reflects the final
terms by which the parties have agreed to settle the
Action.
Now
therefore, the undersigned parties agree as
follows:
| 1) |
Cash Settlement Amount .
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Bankrate
shall pay American Interbanc cash in the amount of Three
Million Dollars ($3,000,000.00) (“Cash Settlement
Amount”) within five (5) calendar days following
Bankrate’s receipt of the original of this Final
Settlement Agreement and the original of the request for
dismissal with prejudice and without costs referenced in
Paragraph 2(a) below, both of which are executed by American
Interbanc and its counsel. Payment shall be made by wire
transfer pursuant to the following instructions:
Union
Bank of CA aba # 122000496
Credit
to American Interbanc Mortgage, LLC account #
0392005815
| 2) |
Dismissal of Action with Prejudice .
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(a)
Concurrently
with American Interbanc’s transmission to
Bankrate’s counsel of the original of this Final
Settlement Agreement that is executed by American Interbanc
and its counsel, American Interbanc will transmit to
Bankrate’s counsel a fully executed original request for
dismissal of the Action as to Bankrate with prejudice and
without costs. American Interbanc agrees that Bankrate may
file the request for dismissal with the Court on American
Interbanc’s behalf, and Bankrate agrees that it will not
file the request for dismissal until after Bankrate has wire
transferred the Cash Settlement Amount.
(b)
The
parties agree that each party is to bear its own
attorneys’ fees and costs with respect to and in any way
relating to the Action. The parties further agree that each
party is to bear its own attorneys’ fees and costs with
respect to the dismissal of the Action with
prejudice.
(c)
The
parties agree that, subject to the provisions of this Final
Settlement Agreement, each party is responsible for its own
tax obligations, if any, arising from the Final Settlement
Agreement and payments made pursuant to the Final Settlement
Agreement.
(d)
Bankrate
shall produce at least one witness at trial in the Action
without the need for a subpoena, primarily for the purpose of
authenticating documents.
| 3) |
Advertising Agreement .
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Bankrate
shall allow American Interbanc to post rates on the mortgage
tables on
www.bankrate.com upon
American Interbanc’s execution of the attached Exhibit A to
Advertising Terms and Conditions.
| 4) |
Good Faith Settlement .
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American
Interbanc, Bankrate, and their attorneys of record agree that
this Final Settlement Agreement is in good faith. American
Interbanc, Bankrate, and their attorneys of record further
agree that Bankrate, by and through its attorneys of record,
shall file with the Court a motion to obtain the Court’s
determination that this Final Settlement Agreement is in good
faith, and American Interbanc agrees that it shall join in
such motion or file such papers, as directed by Bankrate, to
obtain the Court’s determination that this Final
Settlement Agreement is in good faith. American Interbanc and
Bankrate agree that the consideration provided by Bankrate to
American Interbanc under this Final Settlement Agreement shall
be allocated equally amongst the false advertising and
antitrust causes of action brought against Bankrate. This
foregoing statement and allocation are made solely for
purposes of the motion to obtain the Court’s
determination that this Final Settlement Agreement is in good
faith and are subject to Paragraph 7 of this Final Settlement
Agreement.
| 5) |
Release of Bankrate by American Interbanc .
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Except
for the obligations contained in this Final Settlement
Agreement and Exhibit A to Advertising Terms and Conditions,
American Interbanc, on behalf of itself, its subsidiaries,
affiliates (including any corporation, partnership, limited
liability company, fictitious business entity, dba or other
business entity), divisions, departments, officers, directors,
partners, shareholders, members, investors, owners, agents,
attorneys, representatives, employees, assignors, servants,
predecessors, successors and assigns (collectively “the
American Interbanc Releasors”), in consideration of the
promises and undertakings herein expressed, and for other
valuable consideration, the sufficiency of which is hereby
acknowledged and confessed, hereby release, extinguish, acquit
and forever discharge Bankrate and its subsidiaries,
affiliates (including any corporation, partnership, limited
liability company, fictitious business entity, dba or any
other business entity), divisions, departments, officers,
directors, partners, shareholders, members, investors, owners,
agents, attorneys, representatives, employees, assignors,
servants, predecessors, successors, and assigns (collectively
“the Bankrate Releasees”) from any and all present
and future payment obligations, adjustments, executions,
offsets, actions, causes of action, suits, debts, sums of
money, accounts, reckonings, bonds, bills, covenants,
contracts, controversies, agreements, promises, damages,
expenses (including but not limited to court costs and
attorney’s fees), judgments, demands, claims,
liabilities and/or losses whatsoever, whether known or
unknown, claimed, suspected or unsuspected, fixed or
contingent against the Bankrate Releasees which the American
Interbanc Releasors ever had, now have, or may in the future
have against the Bankrate Releasees with respect to, arising
out of or related to the Action and/or the facts and
circumstances surrounding the Action, whether known or
unknown. The American Interbanc Releasors acknowledge and
understand that they are waiving claims, both known and
unknown, and that there may be facts that affect their claims
that are unknown to them or that are different from what they
now understand. It is expressly understood and agreed by the
American Interbanc Releasors that they waive with respect to
the claims released herein all benefits and rights, which the
American Interbanc Releasors may now have or in the future may
have under and by virtue of the terms of Section 1542 of the
Civil Code of the State of California, which section reads as
follows:
“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.”
| 6) |
Release of American Interbanc by Bankrate .
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Except
for the obligations contained in this Final Settlement
Agreement and Exhibit A to Advertising Terms and Conditions,
Bankrate, on behalf of itself, its subsidiaries, affiliates
(including any corporation, partnership, limited liability
company, fictitious business entity, dba or other business
entity), divisions, departments, officers, directors,
partners, shareholders, members, investors, owners, agents,
attorneys, representatives, employees, assignors, servants,
predecessors, successors and assigns (collectively “the
Bankrate Releasors”), in consideration of the promises
and undertakings herein expressed, and for other valuable
consideration, the sufficiency of which is hereby acknowledged
and confessed, hereby release, extinguish, acquit and forever
discharge American Interbanc and each of its subsidiaries,
affiliates (including any corporation, partnership, limited
liability company, fictitious business entity, dba or other
business entity), divisions, departments, officers, directors,
partners, shareholders, members, investors, owners, agents,
attorneys, representatives, employees, assignors, servants,
predecessors, successors and assigns (collectively “the
American Interbanc Releasees”) from any and all present
and future payment obligations, adjustments, executions,
offsets, actions, causes of ac
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