SETTLEMENT AGREEMENT
AGREEMENT made as of this 2nd day of February, 1996 between Oakhurst
Company, Inc., formerly known as Oakhurst Capital, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Oakhurst"), ▇▇▇▇▇▇▇'▇ Fleet Service Co., Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("DFS"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇").
WHEREAS, Oakhurst has commenced an arbitration proceeding against
▇▇▇▇▇▇▇ before the American Arbitration Association (the "Arbitration")
asserting certain claims arising under the Stock Purchase Agreement between
Oakhurst, ▇▇▇▇▇▇▇ and DFS dated as of July 21, 1994 (the "Stock Purchase
Agreement");
WHEREAS, ▇▇▇▇▇▇▇ has asserted certain counterclaims against Oakhurst in
the Arbitration, including without limitation (a) claims to recover monies
allegedly due and owing under a certain purchase money Promissory Note dated
August 1, 1994 in the principal amount of $700,000 (the "Note") and (b) claims
to recover monies allegedly due and owing under a certain Employment Agreement
between DFS and ▇▇▇▇▇▇▇ dated August 1, 1994 (the "Employment Agreement");
WHEREAS, ▇▇▇▇▇▇▇ has advised Oakhurst that in connection with the
proposed settlement of the Arbitration, Geneva Capital Markets, Inc. ("Geneva")
has agreed to pay to ▇▇▇▇▇▇▇ the sum of $25,000.00; and
WHEREAS, Oakhurst and ▇▇▇▇▇▇▇ wish to resolve the Arbitration without
the need for further costly litigation.
NOW, THEREFORE, it is hereby agreed between the under- signed as
follows;
1. The outstanding principal balance due and owing under the Note,
including all accrued and future interest thereon, is hereby reduced to the sum
of $175,000.00.
2. Upon execution and delivery of this Agreement by ▇▇▇▇▇▇▇, Oakhurst
shall pay to ▇▇▇▇▇▇▇, in certified funds or by wire transfer pursuant to written
instructions from ▇▇▇▇▇▇▇ to be delivered by ▇▇▇▇▇▇▇ to Oakhurst, the sum of
$175,000.00, which amount shall be in full payment and satisfaction of all sums
due or hereafter to become due under the Note. Contemporaneously with such
payment by Oakhurst, ▇▇▇▇▇▇▇ shall deliver to Oakhurst the original of the Note
marked "Paid in Full".
3. The Employment Agreement is hereby terminated, provided, however,
that the terms and conditions of the paragraphs of the Employment Agreement
entitled "Notices", "NonCompete & Non-Disclosure", "Severability" and
"Arbitration" shall survive such termination and shall remain in full force and
effect.
-2-
4. ▇▇▇▇▇▇▇ hereby resigns as an employee, director and Vice Chairman of
DFS.
5. In partial consideration for the payment by Geneva to ▇▇▇▇▇▇▇ in the
amount of $25,000.00, Oakhurst, DFS and ▇▇▇▇▇▇▇ shall deliver to Geneva general
releases in the form annexed hereto as Exhibit A, provided that Oakhurst, DFS
and ▇▇▇▇▇▇▇ each receive reciprocal releases from Geneva and provided, further,
that Oakhurst shall have no responsibility for the making of such payment by
Geneva to ▇▇▇▇▇▇▇, or any liability to ▇▇▇▇▇▇▇ in the event that Geneva fails to
make such payment.
6. (a) By execution and delivery of this Agreement, Oakhurst and DFS
hereby release ▇▇▇▇▇▇▇ from any and all claims
(i) arising out of any statement, representation, error or
omission in any Financial Statement or Tax Return;
(ii) arising out of the representation letters which were
executed by ▇▇▇▇▇▇▇ and delivered to Deloitte & Touche LLP
after August 1, 1994; and
(iii) subject to the provisions contained in paragraph 3 hereof,
arising out of the Employment Agreement, including any claims
against ▇▇▇▇▇▇▇ as an officer, director or
-3-
employee of DFS arising subsequent to August 1, 1994; provided, however,
that such release shall not include any claim for indemnification with respect
to any Third Party Claim and/or any claim for indemnification or reimbursement
for any Tax or Tax Liability including, without limitation, any Tax or Tax
Liability resulting, either directly or indirectly, from the filing by DFS on or
about March 15, 1995 of Form 3115, under Section 446(e); Reg. 1.446-1(e) of the
Internal Revenue Code, requesting a Change in Accounting Method, and provided
further that ▇▇▇▇▇▇▇'▇ liability under Section 15 of the Stock Purchase
Agreement shall not exceed the sum of $4,200,000.00.
(b) By execution and delivery of this Agreement, ▇▇▇▇▇▇▇ hereby
releases Oakhurst and DFS from any and all claims to or arising out of (i) the
Note; (ii) the Earn-Out, as defined in Section 3.2 of the Stock Purchase
Agreement; (iii) the Employment Agreement; and (iv) the Pledge and Security
Agreement executed as of August 1, 1994 by and between ▇▇▇▇▇▇▇, Oakhurst and
Integra Bank/Pittsburgh (now known as Integra Bank).
(c) Oakhurst, DSF and ▇▇▇▇▇▇▇ agree that this Settlement Agreement does
not increase or expand the liability of any party under the Stock Purchase
Agreement or under law, and Oakhurst and DFS acknowledge that ▇▇▇▇▇▇▇ preserves
all of his rights and defenses under the Stock Purchase Agreement and/or
-4-
under the law with respect to any claims or future claims which may be asserted
against him and not hereby released.
(d) The claims that are released as set forth in (a) and (b) above are
hereby referred to as the "Released Claims" and the Released Claims shall be and
hereby are discontinued with prejudice and without costs or expenses to any
party.
7. Except to the extent of the Released Claims, nothing contained in
this Agreement shall be deemed to amend or modify the Stock Purchase Agreement,
which shall continue in full force and effect.
8. Subject to the all of the provisions contained in paragraph 6
hereof, Oakhurst, DFS and ▇▇▇▇▇▇▇ hereby acknowledge that all Post Closing
Adjustments provided for in the Stock Purchase Agreement have been made or
waived, other than any adjustments to the Purchase Price which may hereafter
result from any indemnification payments, as provided for in Section 17.5 of
the Stock Purchase Agreement.
9. Nothing contained herein shall be deemed to affect or modify the
validity of the lease agreement dated as of August 1, 1994, between ▇▇▇▇▇▇▇
Realty Corp. and DFS with respect to those premises located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, and the lease agreement dated as of August 1,
1994 between ▇▇▇▇▇▇▇ Enterprises, Inc. and DFS with respect to those
-5-
premises located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the
"Leases"). Upon execution of this Agreement, DFS shall deliver to ▇▇▇▇▇▇▇
estoppel letters with respect to the Leases in the form annexed hereto as
Exhibit B.
10. (a) Upon the execution of this Agreement, the parties shall cause a
letter to be sent to the American Arbitration Association ("AAA") in the form
annexed hereto as Exhibit C, advising the AAA that the Arbitration has been
settled and discontinued.
11. Nothing contained herein shall be deemed to be an admission of
liability by any of the parties hereto or an admission as to the truth of any of
the allegations made as part of the Arbitration.
12. No party to this Agreement shall issue any press release or make
any public announcement relating to the subject matter of this Agreement prior
to the payment to ▇▇▇▇▇▇▇ in accordance with paragraph 2 hereof; provided,
however, that Oakhurst may thereafter make any public disclosure it believes in
good faith is required by applicable law or by any listing or trading agreement
concerning its publicly-traded securities. With respect to any press release
concerning this Agreement, Oakhurst will advise ▇▇▇▇▇▇▇'▇ counsel thereof prior
to issuing such release.
-6-
13. Each of the parties to this Agreement agrees to execute such
documents and take such further steps as are reasonably required to carry out
the purpose and intent of this Agreement.
14. Unless otherwise defined herein, all capitalized terms used herein
shall have the meaning ascribed to them in the Stock Purchase Agreement.
15. This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof, and all prior oral understandings are
deemed to be merged herein. This Agreement shall not be amended or modified
except by written agreement of the parties signed by each of them, and shall be
binding upon and inure to the benefit of the parties and their successors,
personal representatives and assigns.
16. No waiver of any term or condition contained in this Agreement
shall be binding upon the parties unless made in writing and signed by the party
to be bound thereby.
17. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
-7-
18. This Agreement shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written.
OAKHURST COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Director
▇▇▇▇▇▇▇'▇ FLEET SERVICE CO., INC.
By: /s/ Maarten ▇. ▇▇▇▇▇▇▇
______________________________
Maarten ▇. ▇▇▇▇▇▇▇, Director
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-8-
