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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:
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(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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