SETTLEMENT AGREEMENT
Exhibit 10.1
Settlement Agreement (the “Settlement Agreement”) is entered into on this 24th day
of January, 2008 by and between MasTec North America, Inc., a Florida corporation (“Seller”), and
ATLAS Traffic Management Systems LLC, a Delaware limited liability company formerly known as LM-ITS
Acquisition Company LLC (“Buyer”).
WHEREAS, the parties previously entered into that certain Asset Purchase Agreement (the
“Original Agreement”) dated as of November 9, 2006;
WHEREAS, the parties subsequently entered into an Amended and Restated Asset Purchase
Agreement (the “Amended Agreement”) dated as of February 14, 2007 (the “Amended Agreement Date”)
under which the parties amended and restated the Original Agreement in full and Buyer acquired
certain assets and assumed certain liabilities as further specified in the Amended Agreement,
including substantially all of the Seller’s state Department of Transportation related projects and
assets (the “DOT Business”), on the terms and conditions set forth in the Amended Agreement;
WHEREAS, the parties have several outstanding disputes related to the Original Agreement and
the Amended Agreement, including without limitation allegations by the Buyer of various asserted
breaches by the Seller of the representations, warranties and indemnification provisions of the
Original Agreement and the Amended Agreement and other alleged claims, all of which the Seller
denies;
WHEREAS, the parties hereto have agreed to settle all such outstanding disputes and all other
claims or potential claims of Buyer against Seller, known or unknown, and have further agreed that
in exchange for the consideration set forth below, Buyer shall release and discharge Seller from
all claims, liabilities and obligations of every kind, including without limitation, any and all
claims, liabilities, obligations and alleged breaches under the Original Agreement and Amended
Agreement, except as specifically set forth herein, subject to the terms as hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the respective covenants and agreements
of the parties contained herein, and intending to be legally bound hereby, the parties agree as
follows:
1. Recitals. The recitals contained herein are true and correct and by this reference
are incorporated herein and made a part of this Settlement Agreement.
2. Definitions. Capitalized terms used but not defined herein shall have the
respective meanings ascribed to them in the Revised Amended Agreement, including Exhibit A thereto
(defined in Section 5 hereof).
3. Payment.
a. Settlement Payment. Seller shall pay to Buyer on the date hereof the sum of
$4,276,715 in cash by wire transfer of immediately available funds (the “Settlement Amount”),
representing the net of a total of $6,000,000 the Seller has agreed to fund minus
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$1,723,285, which represents the net of all amounts due Seller from Buyer for work performed
or services provided through December 31, 2007 (except for amounts due Seller for work performed
with respect to NCDOT Project No. 2059, which amounts Buyer shall pay to Seller upon Buyer’s
receipt thereof), which the parties agree is currently due and owing by Buyer to Seller under the
Amended Agreement (the “Settlement Payment”).
b. LADOT Settlement Payment.
i) Seller shall pay to Buyer on the date hereof the sum of $610,735, in cash by wire transfer
of immediately available funds (the “LADOT Settlement Amount”), representing the net of a total of
$1,625,000 owing to Buyer minus $1,014,265 in advances made by Seller to Buyer and a certain
settlement payment made by Seller to the State of Louisiana in connection with the LADOT Projects.
Payment of the LADOT Settlement Amount represents full payment and final satisfaction of any and
all amounts due or collectible from (A) Seller and (B) Arch Insurance Company, Arch Reinsurance
Company and any present or future subsidiary or Affiliate of Arch Insurance Company (collectively,
“Arch”), in connection with, arising out of or related to the completion of any of the LADOT
Projects, including without limitation, under Section 19(a)(iv) of the Amended Agreement. For
purposes of this Settlement Agreement, “LADOT Projects” shall have the same meaning as that set
forth in the Amended Agreement as follows: “the four Louisiana Department of Transportation
projects identified on Schedule 2(f)” of the Amended Agreement.
ii) Buyer and its past and present officers, directors, members, parent companies,
subsidiaries, related entities, employees, representatives, legal representatives, assigns,
transferees, predecessors, heirs, principals, attorneys, agents and all of Buyer’s other direct and
indirect Affiliates (collectively, the “Releasing Party”), for and in consideration of the LADOT
Settlement Amount and other good and valuable consideration, the receipt and sufficiency are hereby
acknowledged, agree that neither the Releasing Party nor anyone on his, her or its behalf, shall
assert, make or file any complaint, charge, suit, action or other Claim (as defined in Section
7(a)) against Seller or Arch or their respective past and present officers, directors,
shareholders, parent companies, subsidiaries, related entities, employees, representatives, legal
representatives, assigns, transferees, predecessors, heirs, principals, attorneys, agents and all
other direct and indirect Affiliates of Seller or Arch, as the case may be (collectively, the
“LADOT Released Parties”) with respect to any LADOT Project, provided that (1) Seller pays the
LADOT Settlement Amount to Buyer in accordance with the terms hereof, and (2) the foregoing release
of Seller and Arch shall not release Arch from its obligation to remit to Buyer any sums received
by Arch from LADOT with respect to the LADOT Project No. 2113, less (A) any attorneys’ fees and
costs and (B) costs of removal of liens for work, labor and materials incurred by Arch in
connection with the LADOT Projects (the “Arch Payment”). Buyer agrees that payment of the Arch
Payment will represent full payment and final satisfaction of any and all amounts due or
collectible from Arch under the completion contract between Buyer and Arch dated August 31, 2007.
In the event that any complaint, charge, suit, action or other Claim is made, asserted or filed in
breach of this Section 3(b)(ii), the LADOT Released Parties shall be entitled to recover from Buyer
jointly and severally with any Releasing Party acting in breach of this Section 3(b)(ii) their
reasonable attorneys’ fees and costs incurred in connection with any such breach at both the trial
and appellate levels, including all reasonable
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attorneys’ fees and costs incurred in litigating entitlement to, or the amount of, such
attorneys’ fees and costs.
iii) Notwithstanding anything to the contrary contained in this Section 3(b) or in the
Terminated Agreements and for avoidance of doubt, accounts receivable relating to, or arising in
respect of, the LADOT Projects shall be deemed Acquired Receivables and any and all payments on
account of such accounts receivable heretofore or hereafter received by Seller shall be deemed to
have been received in trust for the benefit of Buyer, and shall be turned over to Buyer, consistent
with Section 13(e) of the Revised Amended Agreement, within five (5) Business Days following the
receipt thereof.
c. Payment for Leasehold Improvements. Seller shall pay Buyer $192,500 (calculated
based on the original allowance of $402,500 less $210,000, the total of amounts previously paid by
Seller for certain leasehold improvements), which represents full payment and final satisfaction of
any and all amounts due from Seller with respect to leasehold improvements under the lease
agreement between Buyer as tenant and Seller as landlord dated February 14, 2007 relating to that
property known as 0000 X.X. 00xx Xxxxxx and 0000 X.X. 00xx Xxxxxx, Xxxxx,
Xxxxxxx 00000 (the “Triple Net Lease”) and the lease agreement between Buyer as tenant and Seller
as landlord dated February 14, 2007 relating to the shop property located at 0000 X.X.
00xx Xxxxxx, Xxxxx, XX 00000 (the “Shop Property Lease”, and together with the Triple
Net Lease, the “Leases”).
4. Known Proceedings. As of the date hereof, other than Proceedings and claims of
which Buyer has Knowledge, Seller represents to Buyer that to its Knowledge it has not received
written notice from any third party regarding any material claim against Seller regarding the
Business other than (a) the Assumed Proceedings set forth on Schedule 4(a)(viii) of the Revised
Amended Agreement (as defined in Section 5 hereof) and (b) the Excluded Proceedings.
Notwithstanding anything contained herein to the contrary, Seller’s representation under this
Section 4 shall survive for a period of 12 months from the date hereof after which time such
representation shall be of no further force or effect. No claim may be brought with respect to
Seller’s representation under this Section 4 unless Buyer delivers to Seller written notice of such
claim (in the form required by Section 21(a) of the Revised Amended Agreement) setting forth the
basis for such claim (including a description of the breach that has occurred) prior to the first
anniversary of the date hereof. For purposes of this Settlement Agreement, “Knowledge” means, with
respect to Seller, the actual knowledge, without inquiry, of C. Xxxxxx Xxxxxxxx, Xxxxxxx xx
Xxxxxxxx, Xxxxxxx X. Xxxxx and/or Xxxxx Xxxxxxx, and with respect to Buyer, the actual knowledge,
without inquiry, of Xxxxxxxx X. Xxxxx, Xxxxx Xxxxxxx-Xxxx, Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxx Xxxxx
and/or Xxxxxx Xxxxxxxxx.
5. Amendment and Restatement of Amended Agreement. Simultaneous with the execution,
delivery and effectiveness of this Settlement Agreement, Buyer and Seller are amending and
restating the Amended Agreement in full as set forth in the Amended Agreement attached hereto as
Exhibit 5 (the “Revised Amended Agreement”). Following the execution and delivery of the Revised
Amended Agreement, the Amended Agreement will be amended and restated in its entirety by the
Revised Amended Agreement and of no further force or effect. The parties hereby reaffirm and
confirm as of the Amended Agreement Date and the date hereof all of their representations,
warranties, covenants and agreements set forth in the Revised Amended
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Agreement. For purposes of clarity, all representations and warranties reaffirmed by Buyer in
this Section 5 as of the date hereof are made as of the date hereof and are material terms of this
Settlement Agreement as if set forth in full herein.
6. Indemnity Agreements. As a condition precedent to Seller’s payment of the Settlement
Amount and the LADOT Settlement Amount as set forth in Sections 3(a) and (b) of this Settlement
Agreement, Buyer shall deliver to Seller a copy of (a) a fully executed indemnity agreement between
Buyer and Arch in the form attached hereto as Exhibit 6(a), and (b) a fully executed indemnity
agreement between Buyer and Lumbermans Mutual Casualty Company, American Motorists Insurance
Company, American Manufacturers Mutual Insurance Company (collectively, “Xxxxxx”), in the form
attached hereto as Exhibit 6(b).
7. General Release and Covenant Not to Xxx.
a. The Releasing Party, for and in consideration of the Settlement Payment and the LADOT
Settlement Amount, as required under Section 3 above and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, hereby remises, releases, acquits,
satisfies and forever discharges Seller and its past and present officers, directors, shareholders,
parent companies, subsidiaries, related entities, employees, representatives, legal
representatives, assigns, transferees, predecessors, heirs, principals, attorneys, agents and all
of Seller’s other direct and indirect Affiliates (collectively “Released Party”), of and from all,
and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, obligations, promises, variances, trespasses, damages, judgments, executions, claims
and demands whatsoever (all of the foregoing collectively, “Claims”), in law or equity, known or
unknown, xxxxxx or inchoate, which said Releasing Party, either individually or collectively,
claims to have on behalf of itself or any other entity or person, ever had, now has, or which any
personal representative, successor, heir or assign of the Releasing Party, hereafter can, shall or
may have, against the Released Party, either individually or collectively, from the beginning of
the world to the date of this Settlement Agreement, including without limitation i) any and all
Claims arising from the performance, nonperformance, or any claim of breach of the Seller’s
covenants, agreements and other obligations under the Original Agreement, the Amended Agreement or
any certificates, documents or agreements provided by the parties in connection therewith
(including Seller’s obligations to transfer the Assets as set forth in Section 2 of the Amended
Agreement, all of which Buyer acknowledges having received), ii) any and all Claims arising from
the Seller’s representations and warranties contained in the Original Agreement, the Amended
Agreement or any certificates, documents or agreements provided by the parties in connection
therewith, iii) any and all Claims arising (whether pursuant to the provisions of the Original
Agreement, the Amended Agreement, the Terminated Agreements (defined in Section 11 hereof) or any
certificates, documents or agreements provided by the parties in connection therewith) for breaches
of any representations, warranties, indemnification obligations or otherwise, including without
limitation any Claims based on or related to allegations of total liquidity shortfall or total
value shortfall and/or based on or related to fraud, iv) any and all Claims arising from any
financial or other information provided by Seller or otherwise made available by Seller to Buyer,
including in connection with the Original
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Agreement or the Amended Agreement, or in connection with any other fact, circumstance or thing, v)
any and all Claims arising from any financial or other information not provided by Seller or not
otherwise made available by Seller to Buyer, including in connection with the Original Agreement or
the Amended Agreement, or in connection with any other fact, circumstance or thing, and vi) any and
all other Claims of any nature whatsoever, whether or not arising from the Original Agreement, the
Amended Agreement, or any of the agreements set forth on Schedule 7(a) hereto (collectively, the
“Preserved Agreements”), subject to and excepting only the obligations of the Seller which
are (A) required to be performed under this Settlement Agreement, (B) required to be performed by
Seller under the Preserved Agreements following the date hereof, or (C) required to be performed by
Seller under the agreements listed on Schedule 7(a)(1) hereto solely with respect to the projects
set forth on Schedule 7(a)(1) hereto for which, as of the date hereof, Buyer has made payment to
Seller, but for which Buyer has not received payment from the owner or third party for whom the
work is being performed (the “Preserved Obligations”), as to which in the case of each of
the preceding clauses (A), (B) and (C), Buyer continues to have all rights against Seller
thereunder in the event of breach or non-performance; provided, that upon Buyer’s receipt of
payment for any Preserved Obligation and notwithstanding anything contained in the Preserved
Agreements to the contrary, such obligation shall automatically be deemed, without any additional
action by the parties hereto, to (i) not have been a Preserved Obligation for any purpose, (ii) be
a fully released Claim pursuant to this Section 7(a) as of the date hereof, and (iii) be fully
subject to the covenant not to xxx of Section 7(b).
b. Neither the Releasing Party nor anyone on his, her or its behalf, shall assert, make or
file any complaint, charge, suit, action or any other Claim against the Released Party with respect
to any matter expressly agreed upon in Section 7(a) provided that the Seller satisfies all of its
obligations required to be performed pursuant to Section 3 of this Settlement Agreement. In the
event that any complaint, charge, suit, action or other Claim is made, asserted or filed in breach
of this Section 7(b), the Released Party shall be entitled to recover from the Buyer jointly and
severally with any Releasing Party acting in breach of this Section 7(b) its reasonable attorneys’
fees and costs incurred in connection with any such breach at both the trial and appellate levels,
including all reasonable attorneys’ fees and costs incurred in litigating entitlement to, or the
amount of, such attorneys’ fees and costs.
c. Releasing Party acknowledges that it may hereafter discover facts different from, or in
addition to, those which it now believes to be true with respect to any and all of the Claims
herein released.
d. Releasing Party acknowledges that it has made an investigation of the facts pertaining to
this Settlement Agreement, the Original Agreement, the Amended Agreement, any and all information
it has ever been provided by any Released Party and any and all dealings it has ever had with any
Released Party to the extent it has deemed necessary, and, further, acknowledges that it has not
relied upon any statement or representation of the Released Party, other than as set forth in this
Settlement Agreement or the Revised Amended Agreement.
8. Seller
Services to Buyer. Notwithstanding anything contained in the Original
Agreement or the Amended Agreement to the contrary, from and after the effectiveness of this
Settlement Agreement, other than with respect to (a) the Preserved Obligations or (b) any
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obligations under the Preserved Agreements which are expressly required by their terms to be
satisfied following the date hereof, Seller shall have no further obligation to provide any work,
materials or other services to Buyer, and any future work, materials or other services provided to
Buyer shall be in Seller’s sole and absolute discretion and on payment terms to be mutually agreed.
All payments due from the Buyer to the Seller for any unpaid work, materials or other services, as
of and after December 31, 2007, shall be paid in accordance with the terms of the existing
agreements for such work, materials or other services.
9. No Admission of Liability. Each party denies that it has violated any law,
breached any contract (including, without limitation, the Original Agreement, the Amended
Agreement, the NDA, the Terminated Agreements, the Preserved Agreements and the Preserved
Obligations), or injured or wronged the other party in any way. This Settlement Agreement is not,
and shall not in any way be construed for any purpose as, an admission by either party of any
liability or wrong-doing, but instead constitutes the good faith settlement of the parties as to
all matters.
10. Security
Services under Leases. Buyer and Seller acknowledge and agree that
notwithstanding the terms of the Leases, Seller agrees to pay one-half (1/2) of the amount of
Buyer’s reasonable out-of-pocket costs (for which documentation shall be provided to Seller upon
Seller’s reasonable request) for services provided by Persons who are not Affiliates of Buyer to
provide security for the entire property of which the premises covered by the Leases constitutes a
portion. Seller’s obligation under this Section 10 may be satisfied by a reduction in the agreed
amount of aggregate additional rent payable by Buyer to Seller pursuant to the Leases.
11. Termination of Original Agreement and Certain Other Agreements Between the
Parties. The Amended Agreement amended and restated in its entirety the Original Agreement,
which is of no further force or effect, and the Revised Amended Agreement amends and restates in
its entirety the Amended Agreement, which is of no further force or effect. Additionally, (a) each
of the agreements listed on Schedule 11 hereto and (b) all other agreements, contracts, leases
(including all leases of real property), consensual obligations, promises and undertakings (whether
written or oral, express or implied, relating to the Business or not or legally binding or not),
which were entered into between Buyer and Seller prior to the date of this Settlement Agreement and
which are not Preserved Agreements (collectively, the “Terminated Agreements”) are hereby
terminated and of no further force or effect, except for (i) Buyer’s obligation to pay, which in
every case shall survive this Settlement Agreement and shall be payable in accordance with the last
sentence of Section 8 of this Settlement Agreement for all services rendered thereunder by or on
behalf of Seller which have not been satisfied as of the date hereof, and (ii) any indemnification,
hold harmless or similar obligations thereunder of Buyer for the benefit of Seller and/or its
Affiliates.
12. Termination of Transition Services Agreement. The transition services agreement
dated as of February 14, 2007 between Seller and Buyer (the “Transition Services Agreement”) is
hereby terminated and of no further force or effect. Buyer and Seller acknowledge and agree that
(a) there are no outstanding amounts or payments due and owing by Buyer to Seller pursuant to the
Transition Services Agreement, and (b) Seller has no further obligations pursuant to the Transition
Services Agreement other than to transfer to Buyer
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promptly following the date hereof at no cost to Buyer all archived e-mail correspondence and
electronic data relating to the Business in Seller’s possession.
13. Effectiveness. This Settlement Agreement and the Revised Amended Agreement shall
become effective upon the execution hereof and thereof by both parties and the payment by Seller of
the Settlement Payment, the LADOT Settlement Amount and the amount described in Section 3(c).
14. Entire Agreement. This Settlement Agreement, the Revised Amended Agreement, the
Preserved Agreements, the Preserved Obligations, the NDA and the schedules, exhibits, certificates
and other agreements to be delivered pursuant hereto constitute the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof and supersede all
prior and contemporaneous agreements, understandings, inducements, and conditions, express or
implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. This
Settlement Agreement may not be modified or amended other than by an agreement in writing executed
by the parties. Should there be any conflict between the terms of this Settlement Agreement and
the terms of the Revised Amended Agreement, the terms of this Settlement Agreement shall prevail.
15. Governing Law. This Settlement Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to the conflicts-of-laws rules
thereof.
16. Dispute Resolution. This Settlement Agreement shall be governed by and construed
in accordance with the laws of the State of Florida applicable to contracts made and to be
performed therein. Any controversy or claim arising out of or relating to this Settlement
Agreement or any related agreement or any of the contemplated transactions will be settled in the
following manner: (i) senior executives representing each of Seller and Buyer will meet to discuss
and attempt to resolve the controversy or claim, (ii) if the controversy or claim is not resolved
as contemplated by clause (i), Seller and Buyer will, by mutual consent, select an independent
third party to mediate such controversy or claim, provided that such mediation will not be binding
upon the parties; and (iii) if such controversy or claim is not resolved as contemplated by clauses
(i) and (ii), the parties will refer any dispute hereunder (to the exclusion of a court of law) to
final and binding arbitration in Miami, Florida in accordance with the then existing rules for
expedited arbitration (the “Rules”) of the American Arbitration Association (“AAA”), and judgment
upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
The law applicable to any controversy shall be the law of the State of Florida, regardless of
principles of conflicts of laws. In any arbitration pursuant to this Agreement involving a dispute
in excess of $500,000, the award or decision shall be rendered by a majority of the members of a
Board of Arbitration consisting of three members, one of whom shall be appointed by each of the
respective parties and the third of whom shall be the chairman of the panel and be appointed by
mutual agreement of said two party-appointed arbitrators. In the event of failure of said two
arbitrators to agree within twenty (20) days after the commencement of the arbitration proceeding
upon the appointment of the third arbitrator, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event of a dispute involving a sum equal to or less than
$500,000, a single arbitrator shall be appointed by the AAA in accordance with the Rules. In the
event that either party shall fail to appoint an arbitrator within ten (10) days after the
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commencement of the arbitration proceedings, such arbitrator and the third arbitrator shall be
appointed by the AAA in accordance with the Rules. Nothing set forth above shall be interpreted to
prevent the parties from agreeing in writing to submit any dispute to a single arbitrator in lieu
of a three member Board of Arbitration. Upon the completion of the selection of the Board of
Arbitration (or if the parties agree otherwise in writing, a single arbitrator), an award or
decision shall be rendered in writing within no more than thirty (30) days. The award rendered by
arbitration shall be final and binding upon the parties, and judgment upon the award may be entered
in any court of competent jurisdiction in the United States. Notwithstanding the foregoing, the
request by either party for preliminary or permanent injunctive relief, whether prohibitive or
mandatory, shall not be subject to arbitration and shall be adjudicated only by the courts of the
State of Florida located in Miami-Dade County or the U.S. District Court for the Southern District
of Florida. Each of the parties to this Settlement Agreement irrevocably consents to the service
of process in any action or proceeding hereunder by the mailing of copies of the notice, summons
and/or complaint by registered or certified airmail, postage prepaid, to the address specified in
Section 21(a) (Notices) of the Revised Amended Agreement. The foregoing shall not limit the rights
of any party to this Settlement Agreement to serve process in any other manner permitted by
Applicable Law or to obtain execution of judgment in any other jurisdiction. An arbitrator(s) or
court reviewing any dispute related to this Agreement pursuant to this Section 15 may award
reasonable costs for legal representation to a successful party and may apportion the costs of the
arbitration or court costs between the parties if the arbitrator or court determines that such
apportionment is reasonable, taking into account the circumstances of the case.
17. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
SETTLEMENT AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
18. Execution in Counterparts; Facsimile Signatures. This Settlement Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, and all of which shall together constitute one and the
same instrument. This Settlement Agreement shall become effective when one or more such
counterparts have been signed by each of the parties and delivered to the other party. A facsimile
signature will have the same force and effect as an original signature.
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IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement as of the
24th day of January, 2008.
| MASTEC NORTH AMERICA, INC. | ||||||
| By: | /s/ C. Xxxxxx Xxxxxxxx | |||||
| C. Xxxxxx Xxxxxxxx | ||||||
| Chief Financial Officer & | ||||||
| Executive Vice President | ||||||
| ATLAS TRAFFIC MANAGEMENT SYSTEMS LLC | ||||||
| By: | /s/ Xxxxx Xxxxxxx-Xxxx | |||||
| Xxxxx Xxxxxxx-Xxxx | ||||||
| Founding Director | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||||
| Xxxxxxxx X. Xxxxx | ||||||
| Founding Director | ||||||
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