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AGREEMENT OF SETTLEMENT AND RELEASE

Settlement Agreement

AGREEMENT OF SETTLEMENT AND RELEASE | Document Parties: SWITCH & DATA FACILITIES COMPANY, INC. | Switch & Data, Inc You are currently viewing:
This Settlement Agreement involves

SWITCH & DATA FACILITIES COMPANY, INC. | Switch & Data, Inc

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Title: AGREEMENT OF SETTLEMENT AND RELEASE
Governing Law: Delaware     Date: 9/12/2007
Industry: Computer Services     Law Firm: Morris Nichols     Sector: Technology

AGREEMENT OF SETTLEMENT AND RELEASE, Parties: switch & data facilities company  inc. , switch & data  inc
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Exhibit 99.1

AGREEMENT OF SETTLEMENT AND RELEASE

This AGREEMENT OF SETTLEMENT AND RELEASE (“ Settlement Agreement ”), dated as of this 7th day of September, 2007, is entered into by and among the undersigned parties (collectively, the “ Settling Parties ”).

RECITALS

WHEREAS, Reuben Taub and Stephen Kelly (together, “ Plaintiffs ”) commenced an action in the Court of Chancery of the State of Delaware (the “ Court ”) captioned Taub, et al. v. Switch & Data Facilities Co., et al. , C.A. No. 2702-VCL on January 29, 2007 (the “ Action ”);

WHEREAS, the Action named as defendants Switch & Data Facilities Company and Switch & Data, Inc. (together, the “ Company ”) as well as Kathleen Earley, George Kelly, William Luby, Arthur Matin, Keith Olsen and M. Alex White (collectively, the “ Individual Defendants ”) and challenged the Company’s and the Individual Defendants’ actions in connection with a restructuring merger and planned initial public offering of the newly merged company’s common stock (the “ Restructuring ”);

WHEREAS, each of Plaintiffs owned one or more shares of the Company’s common stock, Series A Special Junior Stock, Series B Common Stock, Series B Convertible Preferred Stock, Series C Redeemable Preferred Stock and/or Series D-1 Preferred Stock;

WHEREAS, the Company completed the initial public offering on February 8, 2007 and subsequently completed the merger and changed its name to Switch & Data Facilities Company, Inc. on February 13, 2007;

WHEREAS, following the Restructuring, Plaintiffs and five of the Company’s other stockholders, Deborah Kamioner, Thomas Lavin, Dudley Norman, Andrew Schonzeit and Hindy Taub (collectively with Plaintiffs, the “ Demanding Parties ”) demanded appraisal of their shares in connection with the Restructuring pursuant to §262 of the Delaware General Corporation Law (the “ Demands ”, and each “ Demand ”); and

WHEREAS, the Settling Parties, including the Plaintiffs and the other Demanding Parties, the Company and the Individual Defendants, wish to resolve their disputes and withdraw any of their outstanding appraisal demands without resort to continued litigation:

NOW THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions hereof, the Settling Parties hereby stipulate and agree as follows:

 


AGREEMENTS

ARTICLE I

SETTLEMENT AND RESTRUCTURING

1. Agreement as Settlement . Each of the Settling Parties agrees that this Settlement Agreement is a compromise of disputed claims relating to the Restructuring, and is intended to be, a full and complete settlement, discharge and release of all such claims. None of the Settling Parties admits to or concedes any liability or wrongdoing whatsoever, and this Settlement Agreement is not, and shall not be described or characterized by any Settling Party, or by its directors, executives, employees, agents or other representatives, as an admission by any Settling Party of any liability or wrongdoing.

2. Agreement Not Evidence . The existence of this Settlement Agreement, its provisions and terms shall not be interpreted, construed, deemed, invoked, offered or received in evidence or otherwise used by any person in this or any other action or proceeding, civil, criminal or administrative, except in a proceeding to enforce the terms or conditions of the Settlement Agreement. The existence of this Settlement Agreement, its provisions and terms are not, and shall not be argued by any person to be or to be deemed to be evidence of, a concession or admission of, nor to create a presumption of any fault, liability or wrongdoing as to any facts or claims alleged or asserted in the Action or any other action or proceeding.

3. Dismissal of Action . Within 5 days of the effective date of this Settlement Agreement, Plaintiffs hereby agree that they, through their counsel, shall cause to be filed in the Court a stipulation of dismissal of the Action, with prejudice, in the form attached hereto as Exhibit A, and without costs or attorneys’ fees except as specifically provided by paragraph 10 herein. Each of the Settling Parties, regardless of whether such Settling Party was a named party to the Action, shall be bound by the dismissal of the Action, including any effects of the dismissal under applicable law including but not limited to principles of res judicata and collateral estoppel.

4. Withdrawal of Appraisal Demands . In connection with this settlement, each Demanding Party who has not withdrawn his or her Demand as of the effective date of this Settlement Agreement shall, and hereby does withdraw his or her Demand for appraisal of any and all of such Demanding Party’s shares of the Company, and the Company does hereby agree and consent to the withdrawal of any and all Demands of each Demanding Party.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE SETTLING PARTIES

5. Each of the Settling Parties represents and warrants to each of the other Settling Parties as follows:

(a) Authorization . The Settling Party has the requisite legal capacity, power and authority to execute and deliver this Settlement Agreement and to perform the Settling Party’s obligations hereunder.

 

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(b) Validity of Agreement . This Settlement Agreement has been duly executed and delivered by the Settling Party and is a legal, valid, binding and enforceable obligation of the Settling Party, except as such enforceability may be limited by principles of public policy or subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors, and rules of law governing specific performance, injunctive relief or other equitable remedies.

(c) No Consents Required . No consent, waiver, approval, order, permit or authorization of, or declaration or filing with, or notification to, any governmental or regulatory authority, domestic or foreign, local, state or federal, is required on the part of the Settling Party in connection with the execution and delivery of this Settlement Agreement.

(d) Ownership of Claims . The Settling Party owns the claims being released, free and clear of any liens, and the Settling Party has not encumbered or agreed to encumber or assigned or agreed to assign such claims in whole or in part, by contract or by operation of law (including by way of subrogation) to any other person or entity.

(e) Absence of Conflict . The execution, delivery and performance by the Settling Party of this Settlement Agreement and the consummation of the transactions contemplated hereby does not and will not conflict with, or result in a breach or violation of (i) the terms of any contract, lease, mortgage, deed of trust, note agreement, loan agreement, stockholders’ agreement, voting rights agreement or other agreement, obligation, condition, covenant or instrument to which the Settling Party is a party or by which he is bound or to which his property is subject, or (ii) any applicable statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Settling Party or any of the Settling Party’s property.

(f) No Other Litigation . Other than the Action and the Demands, there is no litigation, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Settling Party that is pending or, to the best knowledge of the Settling Party, threatened that could have an adverse effect on the performance by the Settling Party of this Settlement Agreement.

(g) Brokers . No person or entity has acted directly or indirectly as a broker for the Settling Party in connection with the negotiations relating to or the transactions contemplated by this Settlement Agreement, and no person or entity is entitled to any fee or commission or like payment in respect thereof based in any way on any agreement, arrangement or understanding made in connection with this Settlement Agreement.

 

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ARTICLE III

MUTUAL COMPROMISE AND RELEASE

6. Compromise and Release . Each of the Settling Parties shall and hereby does:

 

  (a) release any and all claims, rights, causes of action, demands, suits, matters and issues, known or unknown, liquidated or non-liquidated, contingent or absolute, state or federal, that have been, could have been, or in the future could be asserted in the Action or in any court or proceeding (including without limitation any claims arising under federal or state law relating to alleged breach of any duty, negligence, violations of the federal securities laws or otherwise) by the Settling Parties or any one of them, or by any of their respective heirs, estates, successors, predecessors, agents and representatives, against any other of the Settling Parties, including but not limited to the Plaintiffs, the Demanding Parties, the Company, the Individual

 
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