SETTLEMENT AND RELEASE AGREEMENT
Exhibit 10.1
SETTLEMENT AND RELEASE AGREEMENT
THIS AGREEMENT is made and entered into this 22 day of August, 2008, by and among Xxxxx
Xxxxxxxxx and Xxxxxxxxx Company.
Definitions
The term “DH Parties” shall mean Xxxxx Xxxxxxxxx, for himself and all his heirs, successors,
assigns, including but not limited to his Estate and any of his Trusts as well as anyone claiming
any rights under the Advisory Agreement dated August 16, 1989 (a copy of which is attached as
Exhibit A), and each of them.
The term “HC Parties” shall mean Xxxxxxxxx Company, its predecessors, heirs, successors,
branches, divisions, parents, subsidiaries, affiliates, and assigns, and its present and former
shareholders, directors, officers, agents, employees, attorneys of all such entities/persons, and
each of them.
The term “Parties” shall mean collectively the DH Parties and the HC Parties.
Recitals
Whereas, Xxxxx Xxxxxxxxx filed a complaint in the Circuit Court for the County of Oakland,
State of Michigan, styled as Xxxxx Xxxxxxxxx x. Xxxxxxxxx Company, Case No. 08-090111-CZ, which
complaint alleges breach of contract and seeks damages (the “Lawsuit”). Xxxxxxxxx Company filed an
answer and affirmative defenses, denying any and all claims of the complaint.
Whereas, the Parties have reached agreement to compromise and settle any and all claims on the
terms and conditions as set forth in this Agreement.
Terms and Conditions
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the Parties agree as follows:
1. Return of 2007 Mercedes S 550v by Xxxxx Xxxxxxxxx. Simultaneously with the delivery of
payment set forth in paragraph 2, Xxxxx Xxxxxxxxx shall relinquish to Xxxxxxxxx Company the 2007
Mercedes S 550v that Xxxxxxxxx Company had provided to Xxxxx Xxxxxxxxx. The relinquishment of the
vehicle shall include all keys and necessary papers for the vehicle.
2. Payment by Xxxxxxxxx Company of $550,000.00. Within 10 business days of execution of this
Agreement, Xxxxxxxxx Company shall deliver to counsel for Xxxxx Xxxxxxxxx a check for $550,000.00
made payable to “Xxxxx Xxxxxxxxx.”
3. Release, Covenant Not to Xxx, and Termination of Advisory Agreement. The DH Parties hereby
release, acquit and forever discharge the HC Parties of and from any and all claims, demands,
damages, judgments, actions or causes of action, both known and unknown, liquidated and
unliquidated, fixed and contingent, direct and indirect, under any state or federal law or laws or
the common law, from the beginning of time to the date hereof, which the DH Parties had, have, or
ever can, shall, or may have or claim to have against the HC Parties including any claims arising
out of or in connection with the Lawsuit and/or arising out of or in connection with the Advisory
Agreement dated August 16, 1989 (a copy of which is attached as Exhibit A). The DH Parties
covenant not to xxx the HC Parties as to any of the foregoing. The Parties understand and agree
that this Agreement terminates – without any further consideration and/or payment of any kind or
form – the Advisory Agreement dated August 16, 1989 (a copy of which is attached as Exhibit A),
including any and all of its provisions, including but not limited to, any rights to an advisory
fee, death benefit or other benefits set forth in or contemplated by the Advisory Agreement dated
August 16, 1989 (a copy of which is attached as Exhibit A). Except for the payment set forth in
paragraph 2, the DH Parties shall not receive anything further from the HC Parties, now and/or in
the future.
4. Dismissal With Prejudice. Upon execution of this Agreement, Xxxxx Xxxxxxxxx shall cause to
be filed with the court a stipulated order of dismissal of the Lawsuit with prejudice, and without
costs.
5. Compromise. The Parties agree to exchange such consideration for the sake of compromise
only. It is understood and agreed that this settlement is a compromise of a disputed claim and
that the payment of any funds, the release of any claims, and any other action taken pursuant to
this Agreement shall not be construed as an admission concerning the strength or weakness of any
claim or any
defense of the Parties.
6. Integration, Construction of this Agreement, and Choice of Law. This Agreement constitutes
a single, integrated, written contract expressing the entire agreement or compromise between the
Parties. There are no other such agreements, written or oral, express or implied, between the
Parties except as set forth in this document. All Parties contributed to the drafting of this
Agreement, and no presumption for or against any party to this Agreement shall arise as a result of
drafting. The invalidity or unenforceability of any particular provision of this Agreement shall
not affect the other provisions, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision was omitted. This Agreement shall be construed and enforced
according to Michigan law and may only be modified in writing, signed by all the Parties hereto.
7. No Assignment. The Parties acknowledge and agree that no part of the claims released in
this Agreement have been assigned to any person, entity, partnership, corporation, firm or other
corporate entity.
8. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the
Parties and their respective shareholders, directors, officers, agents, successors, heirs, and
assigns.
9. Counterparts. This Agreement may be executed in counterparts, each of which shall be
considered equally authentic.
10. Authority. The persons executing this Agreement represent and warrant that they have due
and proper authority to execute this Agreement on behalf of their respective principals (including
Xxxxx Xxxxxxxxx on behalf of the DH Parties), and to bind them to the terms of this Agreement.
11. Advice of Counsel. Each party acknowledges that the party had the advice of counsel of the
party’s choosing in reviewing this Agreement and each acknowledges that the party enters into this
Agreement of the party’s own free and voluntary act and will and is under no duress or undue
influence.
IN WITNESS WHEREOF, each party has executed this Agreement.
XXXXX XXXXXXXXX (for himself and on behalf of the DH Parties)
By: |
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| PRINTED NAME: | ||||||
DATE: August 18, 2008
XXXXXXXXX COMPANY (for itself and on behalf of the HC Parties)
By: |
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| PRINTED NAME: | ||||||
ITS: |
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DATE: August 18, 2008
