Exhibit 10.1
SETTLEMENT AGREEMENT
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This Settlement Agreement (the "Settlement Agreement") is entered
into effective as of November 14, 2005, by and between GUIDANT CORPORATION
("Guidant"), on the one hand, and XXXXXXX & XXXXXXX ("J&J"), on the other hand,
both of which are sometimes collectively referred to as the "Parties" with
reference to the following:
1. RECITALS:
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a. Guidant and J&J are Parties to the AGREEMENT AND PLAN OF MERGER,
dated as of December 15, 2004 (the "Merger Agreement"), and are
entering into an AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER,
dated as of the date hereof (the "Amended Agreement"), concurrently
with the execution and delivery of this Settlement Agreement.
b. Guidant is the plaintiff and J&J is the defendant in the following
litigation (the "Litigation"): GUIDANT CORPORATION, Plaintiff,
-against- XXXXXXX & XXXXXXX, Xxxxxxxxx, 00 Xxx. 0000 (XXX) (XXX).
c. Each of the Parties desires to permanently settle and resolve any and
all claims, disputes, issues or matters that exist between them
relating to the matters contemplated by the Merger Agreement or
raised by the Litigation as of the date of this Settlement Agreement
and to dismiss the Litigation with prejudice.
d. NOW, THEREFORE, in consideration of the mutual promises, covenants
and agreements set forth herein, and subject to the terms and
conditions set forth below, the Parties desire to, and hereby do,
resolve their differences and agree as follows:
2. AGREEMENTS:
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a. Dismissal With Prejudice. Immediately following the execution of the
Amended Agreement the Parties shall execute and file with the Court a
Stipulation of Dismissal With Prejudice of the Litigation, in the
form annexed hereto as Exhibit A.
b. Guidant Release. Guidant, for itself, its predecessors, successors,
assigns, affiliates, parents, partners, subsidiaries, divisions and
transferees (collectively, the "Guidant Releasors"), releases,
remises and forever discharges J&J and each of its predecessors,
successors, assigns, affiliates, parents, partners, subsidiaries,
divisions, transferees, past and present officers, directors, agents,
representatives, attorneys and employees (collectively, the "J&J
Releasees"), from any and all claims, demands, rights of action,
causes of action, lawsuits, damages, indebtedness, liabilities,
obligations, losses or expenses of any nature whatsoever and remedies
therefor, duty or relationship, acts, omissions, misfeasance,
malfeasance, sums of money, accounts, compensation, contracts,
controversies, promises, rights of indemnity, contribution or
liability of any type, kind, nature, description or character
whatsoever, and irrespective of how, why or by reason of what facts,
whether known or unknown, suspected or unsuspected, whether
heretofore or now existing or hereafter arising, which could, might
or may be claimed to exist prior to the date hereof, whether
liquidated or unliquidated, whether existing in law or equity and
whether foreseen or unforeseen, which the Guidant Releasors have or
have had, or may hereafter claim to have had prior to the Parties'
execution of the Amended Agreement against any J&J Releasees arising
under the Merger Agreement, including pursuant to or as contemplated
by the Litigation. Notwithstanding anything to the contrary herein,
this Settlement Agreement and the mutual releases set forth herein,
shall not: (i) release the J&J Releasees from their obligations under
the Amended Agreement; or (ii) affect the rights of the Guidant
Releasors to bring claims under or relating to the Amended Agreement,
including bringing claims to enforce their rights under the Amended
Agreement.
c. J&J Release. J&J, for itself, its predecessors, successors, assigns,
affiliates, parents, partners, subsidiaries, divisions and
transferees (collectively, the "J&J Releasors"), releases, remises
and forever discharges Guidant and each of its predecessors,
successors, assigns, affiliates, parents, partners, subsidiaries,
divisions, transferees, past and present officers, directors, agents,
representatives, attorneys and employees (collectively, the "Guidant
Releasees"), from any and all claims, demands, rights of action,
causes of action, lawsuits, damages, indebtedness, liabilities,
obligations, losses or expenses of any nature whatsoever and remedies
therefor, duty or relationship, acts, omissions, misfeasance,
malfeasance, sums of money, accounts, compensation, contracts,
controversies, promises, rights of indemnity, contribution or
liability of any type, kind, nature, description or character
whatsoever, and irrespective of how, why or by reason of what facts,
whether known or unknown, suspected or unsuspected, whether
heretofore or now existing or hereafter arising, which could, might
or may be claimed to exist prior to the date hereof, whether
liquidated or unliquidated, whether existing in law or equity and
whether foreseen or unforeseen, which the J&J Releasors have or have
had, or may hereafter claim to have had prior to the Parties'
execution of the Amended Agreement against any Guidant Releasees
arising under the Merger Agreement, including pursuant to or as
contemplated by the Litigation. Notwithstanding anything to the
contrary herein, this Settlement Agreement and the mutual releases
set forth herein, shall not: (i) release the Guidant Releasees from
their obligations under the Amended Agreement; or (ii) affect the
rights of the J&J Releasors to bring claims under or relating to the
Amended Agreement, including bringing claims to enforce their rights
under the Amended Agreement.
3. NOTICES:
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a. Any notice, demand, request, consent, approval or communication that
either Party desires or is required to give to the other Party shall
be delivered in accordance with Section 8.02 of the Amended
Agreement.
4. MISCELLANEOUS PROVISIONS:
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a. In order to carry out the terms and conditions of this Settlement
Agreement, the Parties agree to promptly execute upon reasonable
request any and all documents and instruments consistent herewith
necessary to effectuate the terms of this Settlement Agreement.
b. By entering into this Settlement Agreement, no Party admits or
acknowledges that they committed any wrongdoing whatsoever.
c. This Settlement Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State. The
United States District Court for the Southern District of New York
will have exclusive jurisdiction over any controversies regarding
this Settlement Agreement; any action or other proceeding which
involves such a controversy will be brought in those courts and not
elsewhere. Nothing in this Settlement Agreement is intended to confer
on any person not a party hereto any rights or remedies under this
Settlement Agreement.
d. This Settlement Agreement and the Amended Agreement (including the
Exhibits and Schedules thereto) are the entire agreement between the
Parties with respect to the claims or subject matter of this
Settlement Agreement and supersedes all prior and contemporaneous
oral and written agreements and discussions pertaining to the claims
or subject matter of this Settlement Agreement. This Settlement
Agreement may be amended only by a written agreement executed by each
of the Parties hereto.
e. No breach of any provision hereof can be waived unless in writing.
Waiver of any one breach of any provision hereof shall not be deemed
to be a waiver of any other breach of the same or any other provision
hereof.
f. This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and each of their respective
predecessors, successors, assigns, affiliates, parents, partners,
subsidiaries, divisions, transferees, past and present officers,
directors, agents, representatives, attorneys and employees.
g. In the event that any covenant, condition or other provision herein
contained is held to be invalid, void or illegal by any court of
competent jurisdiction, the same shall be deemed severable from the
remainder of this Settlement Agreement and shall in no way affect,
impair or invalidate any other covenant, condition or other
provisions herein contained. If such condition, covenant or other
provisions shall be deemed invalid due to its scope or breadth, such
covenant, condition or other provision shall be deemed valid to the
extent of the scope or breadth permitted by law.
h. The Parties hereto, and each of them, represent and declare that in
executing this Settlement Agreement, they rely solely upon their own
judgment, belief and knowledge, and on the advice and recommendations
of their own independently selected counsel, concerning the nature,
extent and duration of their rights and claims and that they have not
been influenced to any extent whatsoever in executing the same by any
representations or statements covering any matters made by any of the
Parties hereto or by any person representing them or any of them. The
Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or warranty
whatsoever, written or oral, as any inducement to enter into this
Settlement Agreement, except as expressly set forth in this
Settlement Agreement and the Amended Agreement.
i. The Parties hereto, and each of them, further represent and warrant
that they have carefully read this Settlement Agreement and know and
understand the contents hereof, and that they signed this Settlement
Agreement freely and voluntarily. Each of the representatives
executing this Settlement Agreement on behalf of their respective
corporations is empowered to do so and thereby binds his respective
corporation. The Parties hereto acknowledge and agree that this
Settlement Agreement shall be deemed to have been drafted jointly by
all Parties hereto.
j. This Settlement Agreement may be executed in counterparts and when
each Party has signed and delivered at least one such counterpart to
the other Party, each counterpart shall be deemed an original, and
all counterparts taken together shall constitute one and the same
agreement, which shall be binding and effective as to all Parties.
This Settlement Agreement may be executed via facsimile signatures,
which shall have the same force and effect as if they were original
signatures to be followed by executed originals
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside its name, respectively.
GUIDANT CORPORATION
Dated: November 14, 2005 By: /s/ Xxxxxx X. Xxxxxxx
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Title: President and Chief Executive Officer
XXXXXXX & XXXXXXX
Dated: November 14, 2005 By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice Chairman and Chief Financial
Officer
EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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| 00 Xxx. 0000 (XXX)
|
GUIDANT CORPORATION, |
| STIPULATION OF
Plaintiff, | DISMISSAL WITH
| PREJUDICE
-against- |
|
XXXXXXX & XXXXXXX, |
|
Defendant. |
|
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IT IS HEREBY STIPULATED AND AGREED by and between the undersigned
attorneys of record for the parties to the above-captioned action, pursuant to
Fed. R. Civ. P. 41(a)(1)(ii), that the complaint in the above-captioned action
be dismissed with prejudice and without costs to any party as against the
other. This stipulation may be filed without further notice.
November 15, 2005
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP
by
/s/ XXXXX XXXX-XXXXX
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Xxxx X. Xxxxxxxx (JG-8715)
Xxxxx Xxxx-Xxxxx (CA-6865)
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Attorneys for Plaintiff
CRAVATH, SWAINE & XXXXX LLP
by
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxx (RJ-6825)
Xxxxx X. Xxxxxx (RW-8556)
Xxxxxxx X. Xxxxxxxx (MR-0701)
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Attorneys for Defendant
