Exhibit (c)(3)
LITIGATION SETTLEMENT AGREEMENT
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Litigation Settlement Agreement, dated as of May 13, 1998, by and among
Bertucci's, Inc., a Massachusetts corporation (the "Company"); Ten Ideas, Inc.,
a Delaware corporation ("Ten Ideas"); Ten Ideas Acquisition Corp., a
Massachusetts corporation ("Ten Ideas Acquisition"); NE Restaurant Company,
Inc., a Delaware corporation ("NE Restaurant"); NERC Acquisition Corp., a
Massachusetts corporation ("NERC"); and Xxxxxx Xxxxxxxx ("Xx. Xxxxxxxx").
WITNESSETH
WHEREAS, the Company, Ten Ideas and Ten Ideas Acquisition are parties to a
certain Agreement and Plan of Merger, dated as of February 13, 1998 (the "Ten
Ideas Agreement"); pursuant to which Ten Ideas Acquisition would be merged with
and into the Company with the Company being the surviving corporation; and
WHEREAS, subsequent to execution of the Ten Ideas Agreement, three
purported class action law suits, as set forth on Schedule A attached hereto,
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were filed in Massachusetts Superior Court against the Company and the members
of its Board of Directors, including Xx. Xxxxxxxx, claiming that the
consummation of the Merger (as defined in the Ten Ideas Agreement) would be
wrongful, unfair and in breach of the individual defendants' fiduciary duties
(collectively, the "Stockholder Claims");
WHEREAS, on May 13, 1998, the Company, NE Restaurant and NERC entered into
an Agreement and Plan of Merger, pursuant to which NERC would be merged with the
Company (the "NE Restaurant Agreement");
WHEREAS, upon entering into the NE Restaurant Agreement, the Company,
pursuant to Section 7.1(c) of the Ten Ideas Agreement, is required and has paid
to Ten Ideas the sum of $1,500,000, plus documented expenses not to exceed
$750,000 (the "Termination Fee"); and
WHEREAS, the Parties hereto now wish to enter this Agreement in order to
(i) address the defense and settlement of the Stockholder Claims, and (ii)
acknowledge and agree to payment by the Company of the Termination Fee to Ten
Ideas.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises contained herein and for good and valuable consideration, the receipt
and adequacy of where are hereby acknowledged, the undersigned hereto agrees as
follows:
1. Defense and Settlement of Litigation. The Company, NE Restaurant and
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NERC hereby covenant and agree, jointly and severally, (i) to continue to permit
Xx. Xxxxxxxx, Ten Ideas and Ten Ideas Acquisition to participate in the defense
or settlement of each of the Stockholder Claims (or any claim consolidating the
Stockholder Claims) in accordance with the
provisions of Section 6.6 of the NE Restaurant Agreement and the Company's
Restated By-laws, and (ii) not to settle or compromise any of the Stockholder
Claims (or any claim consolidating the Stockholder Claims) unless such
settlement or compromise includes the giving by the claimants thereunder to Xx.
Xxxxxxxx, Ten Ideas and Ten Ideas Acquisition of an unconditional release from
all liability in respect of each of the Stockholder Claims (or any such
consolidated claim).
2. Termination Fee. NE Restaurant and NERC hereby acknowledge that the
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Company has paid the Termination Fee to Ten Ideas and the Company, NE Restaurant
and NERC hereby agree that they shall in no event (i) contest the propriety of
or the obligation to make such payments or (ii) seek to recover all or any
portion of the Termination Fee.
3. Notice. For purposes of this Agreement, all notices and all other
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communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when (a) delivered personally, (b) sent by
facsimile or similar electronic device and confirmed, (c) delivered by overnight
express, or (d) if sent by any other means, upon receipt. Notices and all other
communications provided for in this Agreement shall be addressed as follows:
(a) if to Ten Ideas, Ten Ideas
Acquisition and Xx. Xxxxxxxx: Ten Ideas, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, President
with a copy to: Posternak, Xxxxxxxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, P.C.
(b) if to the Company, to: Bertucci's, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Board of Directors
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with a copy to: Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Esq.
(c) if to NE Restaurant and
NERC, to: NE Restaurant Company, Inc.
00X Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
with copies to: Xxxxxxxx Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
4. Miscellaneous. No provision of this Agreement may be modified,
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waived, or discharged unless such waiver, modification, or discharge is agreed
to in a written instrument signed by the parties hereto. No waiver by either
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by any
party which are not set forth expressly in this Agreement.
5. Validity. The invalidity or unenforceability of any provision or
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provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
6. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed to be an original, but all of which together will
constitute one and the same agreement.
7. Entire Agreement; Effectiveness. This Agreement constitutes the
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entire agreement between the parties with respect to the subject matter hereof
and supersedes any and all prior agreements or arrangements among the parties
hereto or any other predecessor in interest thereto or any of their respective
subsidiaries, on the other hand.
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8. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE VALIDITY HEREOF AND THE
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RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN SUCH STATE (WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACH OF THE PARTIES
HERETO AGREES THAT ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE THE RIGHTS OR
OBLIGATIONS OF ANY PARTY HERETO UNDER THIS AGREEMENT MAY BE COMMENCED AND
MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE COMMONWEALTH OF
MASSACHUSETTS, AND THAT THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS SHALL HAVE NON-EXCLUSIVE JURISDICTION OVER ANY SUCH ACTION, SUIT
OR PROCEEDING BROUGHT BY ANY OF THE PARTIES HERETO. EACH OF THE PARTIES HERETO
FURTHER AGREES THAT PROCESS MAY BE SERVED UPON IT BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED AS MORE GENERALLY PROVIDED IN SECTION 8 HEREOF, AND
CONSENTS TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTIES WITH RESPECT
TO ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ENFORCEMENT OF ANY
RIGHTS UNDER THIS AGREEMENT.
9. Invalidity. If any cause, paragraph, section or part of this
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Agreement shall be held or declared to be void, invalid or illegal, for any
reason, by any court of competent jurisdiction, such provision shall be
ineffective but shall not in any way invalidate or affect any other clause,
paragraph, section or part of this Agreement.
10. Binding Effect; Assignment. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective heirs,
successors, personal representatives and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first set forth above.
BERTUCCI'S, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Title: Treasurer
TEN IDEAS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
TEN IDEAS ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
NE RESTAURANT COMPANY, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
NERC ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Asst. Treasurer and Chief
Financial Officer
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
S-1
SCHEDULE A
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XXXXXXXX XXXXXXXX,
v.
XXXXXX XXXXXXXX, XXXXXX X.
XXXXXXX, XX., XXXXX XXXXXX, X.
XXXXXXXX XXXXXXXX, XXXXX X.
XXXXXXXXX, and XXXXXXXX'X, INC.
Civil Action No. 98-793
XXXXXX XXXXX, on behalf of herself
and all others similarly situated
x.
XXXXXXXX'X, INC., XXXXXX XXXXXXXX,
XXXXXX X. XXXXXXX, XXXXX XXXXXX,
X. XXXXXXXX X. XXXXXXXX, and XXXXX
X. XXXXXXXXX
Civil Action No. 98-811
XXXXX XXXXXXX, on behalf of himself and
all others similarly situated
v.
XXXXXX XXXXXXXX, XXXXXX X.
XXXXXXX, XX., XXXXX XXXXXX, X.
XXXXXXXX XXXXXXXX, XXXXX X.
XXXXXXXXX, and XXXXXXXX'X, INC.
Civil Action No. 98-877
