SETTLEMENT AGREEMENT AND MUTUAL RELEASE
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this “Settlement”) is made as of this 14th day of September 2009, by and between Xxxxxx’x Supermarkets, Inc., formerly known as Xxxxxx’x, Inc. (“Xxxxxx’x”), a Wisconsin corporation, and Xxxx Xxxxx Company (“Xxxx Xxxxx”), a Delaware corporation.
WHEREAS, on or about February 24, 2005, Xxxxxx’x and Xxxx Xxxxx executed an Asset Purchase Agreement (“APA”), effectuating the sale from Xxxxxx’x to Xxxx Xxxxx of the assets and associated business of two wholesale distribution centers located in Lima, Ohio, and Westville, Indiana, as well as various other assets as described in the APA. The parties subsequently executed an amendment to the APA, dated as of February 2, 2006.
WHEREAS, following the closing of the APA, Xxxxxx’x asserted that a post-closing purchase price adjustment pursuant to Section 2.07 of the APA, as amended, resulted in an additional amount owing from Xxxx Xxxxx to Xxxxxx’x.
WHEREAS, following the closing of the APA, Xxxx Xxxxx notified Xxxxxx’x of certain claims it asserted against Xxxxxx’x arising out of or relating to the APA and the negotiations leading to the APA, including, without limitation, certain indemnification claims under the APA.
WHEREAS, on or about February 11, 2008, Xxxxxx’x filed an action against Xxxx Xxxxx in the United States District Court for the Eastern District of Wisconsin, Case Number 08-C-0142, alleging a claim of breach of contract against Xxxx Xxxxx, as set forth more specifically therein, relating to the post-closing purchase price adjustment under Section 2.07 of the APA as amended (the “Litigation”). As part of the Litigation, Xxxx Xxxxx asserted certain counterclaims and amended counterclaims against Xxxxxx’x arising out of or relating to the APA and the negotiations leading to the APA, including, without limitation, certain indemnification claims under the APA.
WHEREAS, the parties now desire to fully and finally settle and compromise their dispute and the Litigation.
NOW THEREFORE, in consideration of the mutual covenants, conditions, and agreements contained herein, and for other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Immediately upon the execution of this Settlement, Xxxxxx’x shall cause to be dismissed, with prejudice, its claims against Xxxx Xxxxx in the Litigation. Additionally, and also immediately upon the execution of this Settlement, Xxxx Xxxxx shall cause to be dismissed, with prejudice, its counterclaims against Xxxxxx’x in the Litigation. The dismissals contemplated by this paragraph shall be by joint stipulation, each side to bear its own costs.
2. This Settlement is not and shall not in any way be construed as an express or implied admission by any party of any act of liability, fault, or wrongdoing whatsoever or an admission of a violation of any agreement, law, statute, rule or regulation, but is, instead, a compromise settlement of disputed claims made in order to avoid the expense, burden, and inconvenience of protracted litigation.
3. For purposes of this Settlement, the terms “Xxxx Xxxxx Released Parties” or “Xxxx Xxxxx Releasing Parties” shall mean Xxxx Xxxxx, and each of its current and former affiliates, subsidiaries, parent corporations (in each case, whether direct or indirect), successors or assigns, divisions, predecessors, transferors, transferees, partners, trustees, members, officers, directors, employees, shareholders, representatives, insurers, agents, consultants, and attorneys, and all persons acting by, for, through, under or in concert with any of them. The terms “Xxxxxx’x Released Parties” or “Xxxxxx’x Releasing Parties” shall mean Xxxxxx’x, and each of its current and former affiliates, subsidiaries, parent corporations (in each case, whether direct or indirect), successors or assigns, divisions, predecessors, transferors, transferees, partners, trustees, members, officers, directors, employees, shareholders, representatives, insurers, agents, consultants, and attorneys, and all persons acting by, for, through, under or in concert with any of them.
4. Xxxx Xxxxx represents and warrants that it is the sole owner of any and all Released Claims that were or could have been made against the Xxxxxx’x Released Parties, and that it has not heretofore assigned or transferred to any person or entity any right, claim, or interest in any of the claims released pursuant to paragraph 6 hereof.
5. Xxxxxx’x represents and warrants that it is the sole owner of any and all Released Claims that were or could have been made against the Xxxx Xxxxx Released Parties, and that it has not heretofore assigned or transferred to any person or entity any right, claim, or interest in any of the claims released pursuant to paragraph 7 hereof.
6. Xxxx Xxxxx hereby unconditionally releases, acquits and forever discharges the Xxxxxx’x Released Parties from any and all charges, complaints, claims, liabilities, obligations, controversies, damages, rights, suits, demands, actions, and causes of action (i) asserted, or that could have been asserted, in the Litigation, (ii) arising out of, relating in any way to, in connection with, or based upon any representations or warranties made in the APA or in the negotiations leading to the APA and/or (iii) all claims for attorneys’ fees and/or expenses, and all other common law or statutory causes of action related thereto (the “Xxxx Xxxxx Released Claims”).
7. Xxxx Xxxxx hereby covenants and agrees that it shall not now or hereafter institute, participate in, maintain or assert (either directly or indirectly, on its own behalf, derivatively or on behalf of any other person) any of the Xxxx Xxxxx Released Claims, as set forth in paragraph 6, above, in any forum or in any manner against any of the Xxxxxx’x Released Parties. Xxxx Xxxxx hereby covenants and agrees that it shall indemnify and hold the Xxxxxx’x Released Parties harmless from and against any claim, loss, damage, cost or expense, including, without limitation, attorneys’ fees, by reason of a breach by Xxxx Xxxxx of any of the representations, warranties, and covenants made under this Settlement.
8. Xxxxxx’x hereby unconditionally releases, acquits and forever discharges the Xxxx Xxxxx Released Parties from any and all charges complaints, claims, liabilities, obligations, controversies, damages, rights, suits, demands, actions, and causes of action (i) asserted, or that could have been asserted, in the Litigation, (ii) arising out of, relating in any way to, in connection with, or based upon any representations or warranties made in the APA or in the negotiations leading to the APA and/or (iii) all claims for attorneys’ fees and/or expenses, and all other common law or statutory causes of action related thereto (the “Xxxxxx’x Released Claims”).
9. Xxxxxx’x hereby covenants and agrees that it shall not now or hereafter institute, participate in, maintain or assert (either directly or indirectly, on its own behalf, derivatively or on behalf of any other person) any of the Xxxxxx’x Released Claims, as set forth in paragraph 8, above, in any forum or in any manner against any of the Xxxx Xxxxx Released Parties. Xxxxxx’x hereby covenants and agrees that it shall indemnify and hold the Xxxx Xxxxx Released Parties harmless from and against any claim, loss, damage, cost or expense, including, without limitation, attorneys’ fees, by reason of a breach by Xxxxxx’x of any of the representations, warranties, and covenants made under this Settlement.
10. Nothing in this Settlement shall preclude any action to enforce any of the terms of this Settlement. This Settlement shall be deemed to have been mutually prepared by the parties and shall not be construed against any of them by reason of authorship.
11. The parties expressly acknowledge that: they have read and voluntarily executed this Settlement; that none of the parties has been induced to sign this Settlement through any opinion or representation of fact made by the other party, except representations made under this Settlement; and that they are not relying on any such opinion or representation, except representations made expressly in this Settlement.
12. This Settlement is binding upon and shall inure to the benefit of, and with full right of enforcement by, the parties hereto, and their respective heirs, executors, administrators, personal representatives, predecessors, successors, assigns, subsidiaries, divisions, affiliates, ventures, parent companies, attorneys, agents, employees, officers, directors, trustees, associates, owners, partners, shareholders, members, and legal representatives.
13. This Settlement sets forth the sole and entire agreement between the parties hereto with respect to the subject matter hereof. This Settlement fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof.
14. This Settlement may be waived or modified only by a written agreement signed by each of the parties hereto.
15. THE PARTIES TO THIS SETTLEMENT HEREBY IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE THIS SETTLEMENT, AND HEREBY GIVE THEIR CONSENT THAT ANY SUCH ACTION WILL BE TRIED TO THE COURT WITHOUT A JURY.
16. This Settlement may be executed by facsimile and in identical counterparts, each of which shall constitute one and the same instrument.
17. Each party represents and warrants that it is duly authorized and has full power to execute this Settlement. Each signatory hereto represents and warrants that it is duly authorized and has full power to execute this Settlement on behalf of the party for which it is executing this Settlement.
18. Neither party hereto shall make, or cause to be made, any press release or public announcement concerning this Settlement Agreement that: (i) disparages the other party; (ii) contains any statement concerning the strengths or weaknesses of the parties’ respective claims and defenses in the Litigation; (iii) claims victory or defeat; and/or (iv) suggests that the existence or terms of the Settlement Agreement should be construed as an express or implied admission by any party of any act of liability, fault, or wrongdoing whatsoever or an admission of a violation of any agreement, law, statute, rule or regulation. In addition, the parties agree that if they issue any written press release or other public statement announcing this Settlement Agreement, they will provide a copy of any such written press release or public announcement to the other side at least 24 hours prior to the release of the announcement.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement and Mutual Release on the day and year first above written.
XXXXXX’X SUPERMARKETS, INC. f/k/a XXXXXX’X, INC. By: /s/ Xxxxxx X. Xxxx |
XXXX XXXXX COMPANY By: /s/ Xxxxxx X. Xxxxxx |
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Name: Xxxxxx X. Xxxx Title: Group Vice President – Legal, Risk & Treasury |
Name: Xxxxxx X. Xxxxxx Title: Executive VP, CFO & Treasurer |