Exhibit 10.25
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (this "Agreement"), dated as of
April 24, 2001, is made and entered into by and among MCII HOLDINGS (USA), INC.,
a Delaware corporation (the "Company"), MOTOR COACH INDUSTRIES INTERNATIONAL,
INC., a Delaware corporation and a wholly-owned subsidiary of the Company
("MCII"), MOTOR COACH INDUSTRIES MEXICO, S.A. de C.V., f.k.a Xxxx Autobuses,
S.A. de C.V., a corporation organized under the laws of the United Mexican
States ("Xxxx Autobuses"), XXXXXX XXXXXXXXXX & XXXX FUND III L.P., a Delaware
limited partnership ("JLL"), CIBC WG ARGOSY MERCHANT FUND 2, L.L.C. ("CIBC
Argosy"), CO-INVESTMENT MERCHANT FUND 3, LLC ("CMF" and, together with JLL and
CIBC Argosy, the "Investors") and CONSORCIO G GRUPO XXXX, S.A. de C.V., a
corporation organized under the laws of the United Mexican States ("Xxxx"),
SISTEMAS Y SERVICIOS G, S.A. de C.V., a corporation organized under the laws of
the United Mexican States ("Servicios")
RECITALS
WHEREAS, pursuant to the Investment Agreement (the "Investment
Agreement") dated as of June 11, 1999, as amended, by and among the Investors
and Xxxx, the Investors collectively acquired, among other things, an aggregate
of 610,000 shares of voting common stock, par value $0.01 per share (the "Voting
Common Stock") of the Company and convertible non-voting common stock, par value
$0.01 per share (the "Non-Voting Common Stock" and, together with the Voting
Common Stock, the "Common Stock") of the Company (collectively, the "Investment
Shares") and, simultaneously therewith, the Company repurchased from Xxxx
610,000 shares of Voting Common Stock in exchange for cash and certain other
consideration; and
WHEREAS, upon consummation of the Investment, Xxxx owned 390,000 shares
of Common Stock (the "Xxxx Shares") and Xxxx owns the Xxxx Shares as of the date
hereof; and
WHEREAS, pursuant to the Investment Agreement, the Investors, Xxxx and
Xx. Xxxxxx Xxxxx Xxxxxx ("RGF"), entered into a Stockholders Agreement (the
"Stockholders Agreement") dated as of June 16, 1999, as amended, to memorialize
certain agreements as to the corporate governance of the Company; and
WHEREAS, pursuant to the Investment Agreement, RGF and MCII entered
into an Employment Agreement (the "Employment Agreement") dated as of June 16,
1999, pursuant to which, among other things, RGF agreed to serve as Chairman of
the Board of Directors of the Company and MCII; and
WHEREAS, the Employment Agreement terminated in accordance with its
terms upon the death of RGF on March 4, 2001; and
WHEREAS, MCII acknowledges that RGF is entitled to receive $259,615
pursuant to the terms of the Employment Agreement (the "RGF Payment"), which
funds have been placed in escrow for the benefit of the RGF Estate and will be
distributed in accordance with the terms and subject to the conditions of the
Escrow Agreement (as hereinafter defined); and
WHEREAS, pursuant to the Investment Agreement, the Investors, Xxxx and
the Company entered into an Omnibus Agreement (the "Omnibus Agreement") dated as
of June 16, 1999, pursuant to which, among other things, the parties thereto
memorialized certain agreements with respect to St. Xxxxxxxx Equipment
Disposition Rights (as defined therein); and
WHEREAS, in connection with the Investment Agreement, Xxxx and certain
of its affiliates, on the one hand, and the Company, MCII and certain of their
affiliates, on the other hand, entered into a Master Long Term Purchase and
Supply Agreement (the "Purchase and Supply Agreement"), dated as of June 15,
1999, to facilitate the purchase and sale of Goods (as defined in the Purchase
and Supply Agreement) under mutually acceptable terms and conditions; and
WHEREAS, in connection with the Investment Agreement, Xxxx and certain
of its affiliates, on the one hand, and Xxxx Autobuses, on the other hand,
entered into an Operations Agreement (the "Operations Agreement"), dated as of
June 16, 1999, pursuant to which the parties thereto operate the facility
located in Ciudad, Sahagun, Hidalgo, Mexico; and
WHEREAS, in connection with the Investment Agreement, Servicios, on the
one hand, and Xxxx Autobuses, on the other hand, entered into a Services
Agreement (the "Services Agreement"), dated as of June 16, 1999, pursuant to
which Servicios and certain of its affiliates provided certain services to Xxxx
Autobuses; and
WHEREAS, in connection with the Investment Agreement, Xxxx and the
Company entered into a License Agreement (the "License Agreement"), dated as of
June 16, 1999, pursuant to which Xxxx granted to the Company the right to use
(i) the "Xxxx" trademark, trade name and service xxxx and (ii) certain patents
owned by Xxxx, all on the terms and subject to the conditions set forth in the
License Agreement; and
WHEREAS, certain disputes and differences have arisen between the
Investors and the Company, on the one hand, and Xxxx, on the other hand,
pursuant to which, among other things, the Investors claim to have suffered
damages of $45.6 million (the "Working Capital Deficiency") arising in
connection with the covenants contained in Section 6.3 of the Investment
Agreement; and
WHEREAS, MCII maintains a Supplemental Executive Retirement Program
("SERP") pursuant to which the Company provides executives of MCII certain
benefits; and
WHEREAS, certain disputes and differences have arisen between Xxxx, on
the one hand, and the Company, MCII and the Investors, on the other hand,
pursuant to which, among other things, Xxxx claims to have suffered damages as a
result of the Company withholding certain funds from the Cash Repurchase Amount
(as defined in the Investment Agreement) in order to provide for obligations
under the SERP (the "SERP Claim"); and
WHEREAS, in light of the discrepancies regarding the Working Capital
Claim and the SERP Claim, the parties agree to adjust the original percentage
ownership of each party pursuant to the Investment Agreement to the percentage
ownership and number of voting and non-voting shares for each Investor
(collectively, the "Adjusted Investment Shares") set forth in Schedule I hereto;
and
WHEREAS, Xxxx desires that JLL provide its consent to Xxxx to transfer
up to 302,250 shares of Common Stock (the "Adjusted Xxxx Shares") to or for the
benefit of the holders (the "Bondholders") of the 8% Convertible Subordinated
Debentures Due August 8, 2004 issued by Xxxx (the "Xxxx Xxxxx") pursuant to an
Indenture dated August 8, 1994, under which Bankers Trust Company serves as
trustee (the "Indenture"); and
WHEREAS, the parties hereto wish to settle and otherwise resolve these
disputes between them without the admission of fault by any of them and to make
certain other agreements, all on the terms and conditions specified herein.
NOW THEREFORE, in consideration of the above premises and the promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties hereby agree
as follows:
1 ARTICLE
SETTLEMENT
1.1 Amendment to Section 1.1 of Article I of the Investment Agreement.
For purposes of the Investment Agreement and all other related
agreements which employ the term "Business," the definition of "Business" in
Section 1.1 of Article I of the Investment Agreement is hereby amended in its
entirety to read as follows:
"Business" shall mean the ownership or management of, or investment in,
any business or Person engaged in (a) the designing, manufacturing, assembling
or marketing of coaches of monocoque or unitized construction configuration or
(b) the distribution of replacement parts which are for the use of intercity
coaches or monocoque transit buses.
1.2 Transfer of Common Stock.
(a) At the Closing (as defined herein), the Company shall cancel the stock
certificates evidencing the Xxxx Shares and the Investment Shares.
(b) At the Closing, the Company shall reissue to each Investor a stock
certificate representing the corresponding Adjusted Investment Shares pursuant
to Schedule I. Upon the issuance to the Investors of the Investor Shares, the
Investor Shares will be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive rights.
(c) At the Closing, the Company shall issue to Xxxx a stock certificate
representing the Adjusted Xxxx Shares to Xxxx. Upon the issuance to Xxxx of the
Adjusted Xxxx Shares, the Adjusted Xxxx Shares will be duly authorized, validly
issued, fully paid and nonassessable and free of preemptive rights.
1.3 Amended and Restated Stockholders Agreement. At the Closing, the Company,
the Investors, Xxxx and certain other parties shall enter into an amended and
restated Stockholders Agreement, substantially in the form attached hereto as
Exhibit A (the "Amended and Restated Stockholders Agreement").
1.4 Xxxxxxx Operations Agreement. At the Closing, certain affiliates of Xxxx, on
the one hand, and certain affiliates of the Company and MCII, on the other hand,
shall enter into the Xxxxxxx Operations Agreements, substantially in the forms
attached hereto as Exhibit B-1 and Exhibit B-2, (collectively, the "Xxxxxxx
Operations Agreements").
1.5 Omnibus Agreement. The Company, Xxxx and the Investors agree that from and
after the Closing, (a) Article I, Article II, Article III and Article V of the
Omnibus Agreement shall be deleted in their entirety from the Omnibus Agreement
and (b) Xxxx acknowledges that the St. Xxxxxxxx Equipment (as defined in the
Omnibus Agreement) was never acquired by Xxxx pursuant to Section 1.1 of the
Omnibus Agreement and Xxxx hereby relinquishes any and all rights to acquire the
St. Xxxxxxxx Equipment pursuant to Section 1.1 of the Omnibus Agreement. The
Company, Xxxx and the Investors acknowledge and agree that there are no
outstanding obligations of Xxxx or its affiliates and that neither Xxxx nor any
of its affiliates shall have any future obligations with respect to the St.
Xxxxxxxx Equipment.
1.6 License Agreement. Xxxx and the Company agree that from and after the
Closing, Section 2(a) of the License Agreement shall be amended to provide that
the right of the Company to use the Name (as defined in the License Agreement)
shall terminate on the earlier of (a) 30 days after the date on which the
Company fails to use the name within any six-month period, (b) 30 days after the
date on which the Company fails to manufacture at least 25 coaches utilizing the
Name within any twelve-month period and (c) the tenth anniversary of the date
hereof.
1.7 Services Agreement. The Company, MCII and Xxxx Autobuses on their behalf and
on behalf of their respective affiliates, on the one hand, and Xxxx and
Servicios on their behalf and on behalf of their affiliates, on the other hand,
agree that from and after the Closing, the Services Agreement shall be
terminated and shall forthwith become void and there shall be no liability on
the part of any party thereto or any of their respective affiliates, successors,
representatives, agents and assigns.
1.8 Operations Agreement. The Company, MCII and Xxxx Autobuses on their behalf
and on behalf of their respective affiliates, on the one hand, and Xxxx on its
behalf and on behalf of its affiliates, on the other hand, agree that from and
after the Closing, the Operations Agreement shall be terminated and shall
forthwith become void and there shall be no liability on the part of any party
thereto or any of their respective affiliates, successors, representatives,
agents and assigns.
1.9 Master Long-Term Purchase and Supply Agreement. The Company and MCII on
their behalf and on behalf of their respective affiliates, on the one hand, and
Xxxx on its behalf and on behalf of its affiliates, on the other hand, agree
that from and after the Closing, the Purchase and Supply Agreement shall be
terminated and shall forthwith become void and there shall be no liability on
the part of any party thereto or any of their respective affiliates, successors,
representatives, agents and assigns.
1.10 Consent to Transfer. At the Closing, notwithstanding any of the
restrictions set forth in Article IV of the Amended and Restated Stockholders
Agreement restricting Dina's ability to transfer the Adjusted Xxxx Shares, JLL
consents to, and agrees not to take any action that would prohibit Xxxx from
selling, conveying, assigning, transferring and delivering the Adjusted Xxxx
Shares to or for the benefit of the Bondholders in connection with Xxxx
extinguishing its obligations under the Xxxx Xxxxx (the "Xxxx Exchange");
provided that the Bondholders take the Adjusted Xxxx Shares subject to, and
agree to comply with, the provisions of the Amended and Restated Stockholders
Agreement. Notwithstanding the foregoing, no transfer of Adjusted Xxxx Shares to
the Bondholders shall be valid if, as a result of the Xxxx Exchange, more than
475 Bondholders would become stockholders of the Company. Notwithstanding any
other provision contained herein the Company shall be under no obligation to
make any filings under any applicable securities laws or regulations in
connection with such transfer, including, without limitation, the filing of a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act").
1.11 Xxxx Release. Effective as of the Closing, Xxxx and each of Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxxx Xxxxx Xxxxxx, Xxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxx Xxxxxx
and Xxxxxx Xxxxx Xxxxxx (collectively, the "Xxxxx Xxxxxx Family"), for
themselves and their respective affiliates, successors, representatives, agents,
employees, directors, officers and assigns, and each member of the Xxxxx Xxxxxx
Family's respective heirs, administrators and executors, hereby expressly and
unconditionally release, acquit and forever discharge the Investors and the
Company, together with each of their respective affiliates, successors,
representatives, agents, directors, officers and assigns, from any claims,
demands, counterclaims, rights, obligations, causes of action, payments,
accounts, debts, contracts, promises, agreements, controversies, liens,
liabilities, losses, attorneys' fees or damages, whether known or unknown,
foreseen or unforeseen, whether in law or in equity or in contract or in tort
("Claims"), arising at any time prior to the date of this Agreement arising out
of or in any way relating to the ownership or operation of the Company or any of
its subsidiaries or affiliates or any of their respective businesses, including,
without limitation, with respect to (i) the Investment Agreement, (ii) the
calculation of the Cash Repurchase Amount, (iii) the Transactions (as defined in
the Investment Agreement), (iv) any other agreement that relates to the
transactions contemplated by the Investment Agreement, (iv) the sale by the
Company of an additional $50 million of Common Stock to the Investors on May 15,
2000, (v) the SERP Claim, (vi) the purchase by the Company of Autopartes
Hidalguenses, S.A. de C.V., (vii) the Purchase and Supply Agreement, (viii) the
Services Agreement, (ix) the Operations Agreement and (x) claims relating to
taxes payable to Revenue Canada. Nothing contained herein shall be deemed to
release any party from any Claims arising out of or relating to any of the
agreements, arrangements or understandings set forth on Schedule II hereto or
from its obligations hereunder.
1.12 Investor Release. Effective as of the Closing, the Investors and the
Company, for themselves and their respective affiliates, successors,
representatives, agents and assigns, shall expressly and unconditionally
release, acquit and forever discharge Xxxx and each member of the Xxxxx Xxxxxx
Family together with their affiliates, successors, representatives, agents,
employees, directors, officers and assigns, and each member of the Xxxxx Xxxxxx
Family's respective heirs, administrators and executors, from any Claims,
arising at any time prior to the date of this Agreement arising out of or in any
way relating to the ownership or operation of the Company or any of its
subsidiaries or affiliates or any of their respective businesses, including,
without limitation, with respect to (i) the Investment Agreement, (ii) the
Working Capital Deficiency, (iii) the Transactions, (iv) the purchase by the
Company of Autopartes Hidalguenses, S.A. de C.V., (v) the Purchase and Supply
Agreement, (vi) the Services Agreement, (vii) the Operations Agreement and
(viii) [claims relating to taxes payable to Revenue Canada and (ix) any other
agreement that relates to the transactions contemplated by the Investment
Agreement. Nothing contained herein shall be deemed to release any party from
any Claims arising out of or relating to any of the agreements, arrangements or
understandings set forth on Schedule III hereto or from its obligations
hereunder.
1.13 Release from Third-Party Obligations. At the Closing, Xxxx shall deliver to
the Company and MCII, in the form attached hereto as Exhibit C, a full and
complete release of each of the Company, MCII and their respective affiliates
from any and all obligations under each of the Joint Agreements (as hereinafter
defined) and there shall be no liability on the part of the Company, MCII or
their respective affiliates with respect to such Joint Agreements. Xxxx agrees
to defend, indemnify and hold harmless the Company, MCII and their respective
affiliates from any claims, demands, actions and liabilities arising under or
relating to the Joint Agreements. As used herein, "Joint Agreements" shall mean
each agreement, arrangement or understanding that is binding on Xxxx or any of
its affiliates under which the Company, MCII, or any of their respective
affiliates may be liable to a third party with a respect to any obligation of
Xxxx or its affiliates, including, without limitation, the agreements,
arrangements and understandings set forth on Schedule 1.13 hereto.
1.14 Payment. In connection with the execution and delivery of this Agreement,
the Company shall deliver to the Escrow Agent, cash in an amount equal to $1.624
million, (the "Payment") calculated in accordance with Schedule IV hereto. The
Payment will be held by the Escrow Agent in accordance with the Escrow
Agreement, substantially in the form attached hereto as Exhibit D.
1.15 The parties acknowledge and agree that the release by the Xxxxx Xxxxxx
Family is granted in consideration of the release granted to each of the members
of the Xxxxx Xxxxxx Family by the Investors and the Company. Except as expressly
provided herein, nothing in this Agreement or any other agreement related to the
Investment Agreement or the Transactions shall be construed or deemed to create
or impose any joint liability, suretyship or guarantee obligation between (a)
any member of the Xxxxx Xxxxxx Family, on the one hand, and (b) Xxxx or any of
its affiliates or subsidiaries, on the other hand. Except as expressly provided
herein, the members of the Xxxxx Xxxxxx Family shall not be liable for the
obligations or liabilities of Xxxx, its affiliates or subsidiaries.
2 ARTICLE
CLOSING
2.1 Closing. The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place on the date hereof, at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. All of the
transactions contemplated hereby are intended by the parties to be consummated
simultaneously; and if any transaction contemplated hereby is not consummated as
provided herein, the parties shall take all actions necessary to dissolve and
invalidate all other transactions contemplated hereby as if none of such
transactions had been consummated.
2.2 Deliveries by the Company and MCII. At the Closing, the Company and/or MCII
are delivering or causing to be delivered the following:
(a) to each entity listed on Schedule I a certificate or certificates evidencing
the number of Adjusted Investment Shares set forth opposite such entity's name
on Schedule I and any other documents that are necessary to transfer good and
valid title to such securities to the Investors, free and clear of any and all
Liens; and
(b) to Xxxx, a certificate or certificates evidencing the Adjusted Xxxx Shares;
and
(c) to the Investors and Xxxx, the Amended and Restated Stockholders Agreement,
duly executed by the Company;
(d) To Xxxx and the Escrow Agent, the Escrow Agreement, duly executed by the
Company;
(e) to the Escrow Agent, the Payment and the RGF Payment, by wire transfer of
immediately available funds; and
(f) all other documents, certificates, instruments and writings required to be
delivered by the Company or MCII at or prior to the Closing pursuant to this
Agreement or otherwise required in connection herewith.
2.3 Deliveries by the Investors. At the Closing, the Investors are delivering or
causing to be delivered the following:
(a) to the Company and Xxxx, the Amended and Restated Stockholders Agreement,
duly executed by each of the Investors and any assignee thereof; and
(b) to the Company, stock certificates evidencing the Investment Shares; and
(c) all other documents, certificates, instruments and writings required to be
delivered by the Investors at or prior to the Closing pursuant to this Agreement
or otherwise required in connection herewith.
2.4 Deliveries by Xxxx. At the Closing, Xxxx is delivering or causing to be
delivered the following:
(a) to the Company, a stock certificate evidencing the Xxxx Shares; and
(b) to the Company and the Investors, the Amended and Restated Stockholders
Agreement, duly executed by Xxxx; and
(c) to the Company, MCII and the Investors, evidence of the appointment of the
Xxxx Authorized Agent (as defined herein); and
(d) to the Company and the Escrow Agent, the Escrow Agreement, duly executed by
the Company;
(e) to the Company, MCII and the Investors, evidence of the Xxxx Stockholder
Approval; and
(f) all other documents, certificates, instruments and writings required to be
delivered by Xxxx at or prior to the Closing pursuant to this Agreement or
otherwise required in connection herewith.
3 ARTICLE
REPRESENTATIONS AND WARRANTIES
3.1 Company and MCII Representations and Warranties. The Company and MCII,
jointly and severally, make the following representations and warranties with
respect to the transactions set forth in Article I:
(a) Each of the Company and MCII is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and corporate authority to enter into this
Agreement, and to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by each of the Company and MCII of
this Agreement, and the consummation of the transactions contemplated hereby
have been authorized by all necessary corporate action. This Agreement has been
duly executed and delivered by each of the Company and MCII and, assuming that
this Agreement constitutes a valid and binding obligation of the other parties
hereto, constitutes a valid and binding obligation of each of the Company and
MCII, enforceable against each of the Company and MCII in accordance with its
terms.
(c) The execution and delivery by each of the Company and MCII of this Agreement
does not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, or result in any
violation of or default under, (i) any provision of the organizational documents
of either the Company or MCII, (ii) any judgment, order, injunction or decree
(an "Order"), or statute, law, ordinance, rule or regulation ("Applicable Law"),
applicable to either the Company or MCII or (iii) any note, bond, mortgage,
indenture, license, agreement, lease or other instrument or obligation
("Contracts") to which either the Company or MCII is a party. No consent,
approval, order or authorization of, notice to, or registration, declaration or
filing ("Governmental Approval") of any court, administrative agency or
commission or other governmental entity, authority or instrumentality, domestic
or foreign ("Governmental Authority"), is required to be obtained or made by or
with respect to either the Company or MCII in connection with the execution and
delivery of this Agreement or the consummation by either the Company or MCII of
the transactions contemplated hereby.
3.2 Investor Representations and Warranties. Each of the Investors, severally
and not jointly, makes the following representations and warranties solely with
respect to itself in connection with the transactions set forth in Article I
above:
(a) The execution, delivery and performance by such Investor of this Agreement,
and the consummation of the transactions contemplated hereby, have been
authorized by all necessary action, corporate or otherwise on behalf of such
Investor. This Agreement has been duly executed and delivered by such Investor,
and, assuming that this Agreement constitutes a valid and binding obligation of
the other parties hereto, constitutes a valid and binding obligation of such
Investor, enforceable against such Investor in accordance with its terms.
(b) The execution and delivery by such Investor of this Agreement does not, and
the consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of or default
under, (i) any provision of the organizational documents of such Investor, (ii)
any Order, or Applicable Law, applicable to such Investor or (iii) any Contracts
to which such Investor is a party. No Governmental Approval of any Governmental
Authority is required to be obtained or made by or with respect to such Investor
in connection with the execution and delivery of this Agreement or the
consummation by such Investor of the transactions contemplated hereby.
3.3 Xxxx Representations and Warranties. Xxxx makes the following
representations and warranties in connection with the transactions set forth in
Article I above:
(a) The execution, delivery and performance by Xxxx of this Agreement, and the
consummation of the transactions contemplated hereby, have been authorized by
all necessary action, corporate or otherwise on behalf of Xxxx, other than the
Xxxx Stockholder Approval (as hereinafter defined), including authorization and
approval of the members of the Xxxxx Xxxxxx Family that directly or indirectly
own securities of Xxxx. This Agreement has been duly executed and delivered by
Xxxx, and, assuming that this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of Xxxx, enforceable against Xxxx in accordance with its terms,
subject to receipt of the Xxxx Stockholder Approval.
(b) The execution and delivery by Xxxx of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of or default
under, (i) any provision of the organizational documents of Xxxx, (ii) any
Order, or Applicable Law, applicable to Xxxx or (iii) any Contracts to which
Xxxx is a party. No Governmental Approval of any Governmental Authority is
required to be obtained or made by or with respect to Xxxx in connection with
the execution and delivery of this Agreement or the consummation by Xxxx of the
transactions contemplated hereby.
(c) Xxxx has good and valid title to the Xxxx Shares, free and clear of all
Liens, and the Xxxx Shares are the only securities of the Company that Xxxx or
any of its affiliates or associates own beneficially or of record as of the date
hereof (as each such term is used under the regulations promulgated under the
Securities Exchange Act of 1934, as amended).
(d) The affirmative vote of the holders of a majority of the outstanding shares
of common stock of Xxxx (the "Xxxx Common Stock") is the only vote required to
approve the transactions contemplated hereby, including with Release set forth
in Section 1.11 (the "Xxxx Stockholder Approval"). No other vote of the
stockholders of Xxxx is required by law, the charter or by-laws of Xxxx or
otherwise in order for Xxxx to consummate the transactions contemplated hereby.
The shares of Xxxx Common Stock, are the only outstanding equity interests of
Xxxx which have voting rights.
(e) The Xxxx Stockholder Approval was obtained on March 2, 2001. Xxxx Xxxxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx X. Xxxxxxx Xxxxx and Xxxx Xxxxx Xxxxxxxx Farah were
granted the power and authority to execute this Agreement on behalf of Xxxx
pursuant to the Power of Attorney attached hereto as Exhibit E. The Power of
Attorney is the valid and binding obligation of Xxxx, enforceable against Xxxx
in accordance with its terms.
4 ARTICLE
MISCELLANEOUS
4.1 Admissions. By entering into this Agreement, no party hereto intends to
make, nor shall they be deemed to have made, any admission of any kind.
4.2 Third Party Beneficiary. Unless specifically provided herein, this Agreement
is not intended to create, and shall not create, any rights in any person or
entity that is not a party to this Agreement.
4.3 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the subject matter contained
herein, and there are no restrictions, promises, representations, warranties,
covenants, conditions or undertakings with respect to the subject matter hereof,
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties hereto
with respect to the subject matter hereof. This Agreement constitutes the entire
understanding of the parties concerning its subject matter and may not be
modified, altered, or discharged except by a writing signed by all of the
parties. No representations or promises except those set forth herein have been
made to induce any party to enter into this Agreement.
4.4 Successors and Assigns. This Agreement shall be binding on each of the
parties hereto and on their respective successors and assigns.
4.5 Representations and Warranties. The representations and warranties set forth
in Article III hereof shall survive indefinitely following the execution of this
Agreement and the consummation of the transactions contemplated hereby.
4.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles and conflicts of law thereof. THE PARTIES HERETO WAIVE THEIR RIGHT TO
A JURY TRIAL WITH RESPECT TO DISPUTES HEREUNDER; ALL SUCH DISPUTES SHALL BE
SETTLED BY BINDING ARBITRATION PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION
ASSOCIATION IN NEW YORK, NEW YORK AND THE ORDER OF SUCH ARBITRATORS SHALL BE
FINAL AND BINDING ON ALL PARTIES HERETO AND MAY BE ENTERED AS A JUDGMENT IN A
COURT HAVING JURISDICTION OVER THE PARTIES. Subject to the foregoing, each party
hereby agrees and consents to the jurisdiction of the United States District
Court for the Southern District of New York and the jurisdiction of the courts
of the State of New York located in the Borough of Manhattan in the City of New
York (collectively the "Courts"). Xxxx hereby irrevocably consents to the
service of any and all process in any such suit, action or proceeding by the
delivery of such process to such party at the address and in the manner provided
in Section 4.7. Xxxx has appointed The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as its authorized agent (the "Xxxx
Authorized Agent") upon which process may be served in any suit, action or
proceeding based on this Agreement which may be instituted in any Court, by or
by any party hereto, and Xxxx expressly accepts the jurisdiction of any such
Court in respect of any such suit, action or proceeding. Such appointment shall
be irrevocable. Xxxx represents and warrants that the Xxxx Authorized Agent, has
agreed to act as said agent, respectively, for service of process, and Xxxx
agrees to take any and all action, including the filing of any and all documents
and instruments, which may be necessary to continue such appointment in full
force and effect. Service of process upon the Xxxx Authorized Agent and written
notice of such service to Xxxx shall be deemed, in every respect, effective
service of process upon Xxxx.
4.7 Notices. All notices and other communications hereunder shall be in writing
and shall be delivered personally or by next-day courier or telecopied, with
confirmation of receipt, to the parties at the addresses specified below (or at
such other address for a party as shall be specified by like notice; provided
that notices of change of address shall be effective only upon receipt thereof).
Any such notice shall be effective upon receipt, if personally delivered or
telecopied, or one day after delivery to a courier for next-day delivery.
If to the Company or MCII, to:
MCII Holdings (USA), Inc.
x/x Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxxxxx, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with copies to:
Xxxxxx Xxxxxxxxxx & Xxxx Fund III, LP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
Facsimile: (000) 000-0000
If to JLL, to:
Xxxxxx Xxxxxxxxxx & Levy Fund III, LP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
Facsimile: (000) 000-0000
If to CIBC Argosy or CMF, to:
c/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Flyer, Esquire
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Esquire
Facsimile: (000) 000-0000
If to Xxxx, to:
Consorcio G Grupo Xxxx, S.A. de C.V.
Tlacoquemecatl Xx. 00
Xxxxxxx Xxx Xxxxx
00000, Xxxxxx D.F., Mexico
Attention: Xx. Xxxxxxxx Xxxxxx Xxxxxx
Facsimile: 000-000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esquire
Facsimile: (000) 000-0000
4.8 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
4.9 Specific Performance. Each of the parties hereto acknowledges and agrees
that in the event of any breach of this Agreement, the non-breaching party or
parties would be irreparably harmed and could not be made whole by monetary
damages. The parties hereby agree that in addition to any other remedy to which
they may be entitled at law or in equity, they shall be entitled to compel
specific performance of this Agreement in any action instituted in any court of
the United States or any state thereof having subject matter jurisdiction for
such action.
4.10 Severability. The invalidity, illegality or unenforceability of one or more
of the provisions of this Agreement in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
4.11 Amendments. This Agreement may not be amended, modified or supplemented
unless such modification is in writing and signed by each of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF
, the parties have executed this Settlement Agreement and Release as of the date
first above written.
MCII HOLDINGS (USA), INC.
By: _______________________________
Name:
Title:
MOTOR COACH INDUSTRIES INTERNATIONAL, INC.
By: _______________________________
Name:
Title:
XXXXXX XXXXXXXXXX & XXXX FUND III L.P.
By: JLL ASSOCIATES III, LLC,
its General Partner
By: ___________________________________
Managing Member
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: _________________________________
Xxxxxxx X. Flyer, authorized signatory
CO-INVESTMENT MERCHANT FUND 3, LLC
By: ___________________________________
Xxxxxxx X. Flyer, authorized signatory
CONSORCIO G GRUPO XXXX, S.A. de C.V.
By: ___________________________________
Name:
Title:
___________________________________
Xxxxxxx Xxxxxx Xxxxx Xxxxxx
___________________________________
Xxxxxxx Xxxxx Xxxxxx
___________________________________
Xxxxxxxxx Xxxxx Xxxxxx
___________________________________
Omar Xxxxxxxx Xxxxx Xxxxxx
___________________________________
Xxxxxxxxxx Xxxxxx Xxxxxx
___________________________________
Xxxxxxxx Xxxxx Xxxxxx
___________________________________
Xxxxxxx Xxxxx Xxxxxx
___________________________________
Xxxxxx Xxxxx Xxxxxx
MOTOR COACH INDUSTRIES MEXICO, S.A. de C.V.
By: ___________________________________
Name:
Title:
SISTEMAS Y SERVICIOS G, S.A. de C.V.
By: ___________________________________
Name:
Title:
Shares of Common
Stock Issued Total Shares of
Name of the Terms of Common Stock Percentage
Stockholder This Agreement Each Investor Ownership
----------- -------------- ------------- ---------
Xxxxxx Xxxxxxxxxx & Levy Fund III, L.P. 73,634.5 587,489.9 58.7
Coaches, LLC 1,579.5 11,339.5 1.1
CIBC WG Argosy Merchant Fund 2, L.L.C 11,282 89,712.14 8.97
Co-Investment Merchant Fund 3, LLC 1,254 9,967.46 1.0
SCHEDULE II
1. any and all obligations under the Promissory Agreement for the Transfer of
Real Estate among Xxxx Autobuses, and Ingeniera En Diseno Xxxx, S.A. de
C.V.
2. any and all obligations under the Promissory Agreement for the Transfer of
Real Estate among Xxxx Autobuses and Plasticos Automotrices xx Xxxxxxx,
X.X. de C.V.
3. any and all obligations under the Promissory Agreement for the Transfer of
Real Estate among Xxxx Autobuses and Raices del Sur, S.A. de C.V.
4. any and all obligations under the License Agreement, dated as of June 16,
1999, by and between Xxxx and the Company, as amended, arising from and
after the date hereof
5. any and all obligations under the Agreement, dated as of June 16, 1999, by
and among the Investors and the Xxxxx Xxxxxx Family, arising from and after
the date hereof
6. any and all obligations under the Amended and Restated Stockholders
Agreement
7. any and all obligations under the Xxxxxxx Operations Agreement
SCHEDULE III
1. any and all obligations under Section 7.3 of the Investment Agreement or
any other provision of the Investment Agreement relating to Dina's covenant
not to compete with the Company or its affiliates from and after the date
hereof
2. any and all obligations under the Promissory Agreement for the Transfer of
Real Estate among Xxxx Autobuses, and Ingeniera En Diseno Xxxx, S.A. de
C.V.
3. any and all obligations under the Promissory Agreement for the Transfer of
Real Estate among Xxxx Autobuses and Plasticos Automotrices xx Xxxxxxx,
X.X. de C.V.
4. any and all obligations under the Promissory Agreement for the Transfer of
Real Estate among Xxxx Autobuses and Raices del Sur, S.A. de C.V.
5. any and all obligations under the License Agreement, dated as of June 16,
1999, by and between Xxxx and the Company, as amended, arising from and
after the date hereof
6. any and all obligations under the Agreement, dated as of June 16, 1999, by
and among the Investors and the Xxxxx Xxxxxx Family, arising from and after
the date hereof
7. any and all obligations under the Amended and Restated Stockholders
Agreement
8. any and all obligations under the Xxxxxxx Operations Agreement
