EXHIBIT 10.3
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This Settlement Agreement and Mutual Releases are entered into this 11th
day of June, 1998, by and among (1) Continental Partners Group, Inc.
("Continental Partners"); (2) Binks Xxxxx Corporation, formerly Binks
Manufacturing Company ("Binks"); and (3) Xxxxxx Xxxxxx & Xxxxx.
WHEREAS Continental Partners has brought suit against Binks in the Law
Division of the Circuit Court of Xxxx County, Illinois in a case captioned
CONTINENTAL PARTNERS GROUP, INC. V. BINKS MANUFACTURING COMPANY, 91 L 17815,
alleging that Binks is liable for the payment of an independence fee and
certain expenses associated with a certain engagement agreement (the "Suit");
WHEREAS Binks has denied the allegations of Continental Partners in the
Suit and has alleged that it properly terminated any agreement with
Continental Partners, thereby ending any liabilities to Continental Partners
as alleged;
WHEREAS Binks has filed a suit in the Chancery Division of the Circuit
Court of Xxxx County, Illinois captioned BINKS MANUFACTURING COMPANY V.
XXXXXX XXXXXX & XXXXX AND CONTINENTAL PARTNERS GROUP, INC., Case Xx. 00 XX
000000, alleging that Continental Partners has tortiously interfered with
Binks' relationship with its former counsel, Xxxxxx Xxxxxx & Xxxxx, and
further alleging that, in the event that Binks was found liable for the fees
sought by Continental Partners in the Suit, that Binks would be entitled to
indemnification from Xxxxxx Xxxxxx & Xxxxx for those amounts (the "Chancery
Action").
WHEREAS Continental Partners and Xxxxxx Xxxxxx & Xxxxx deny that they
have any liability as alleged to Binks or that they have committed the acts
alleged by Binks in the Chancery Action;
WHEREAS the parties hereto desire to compromise and settle their various
disputes and acknowledge that this settlement agreement is a compromise of
unproven and disputed claims and in no way constitutes an admission of
liability by any of the parties to this agreement, but each considers it
desirable and in their best interest to avoid further expense, inconvenience
and distraction associated with the various litigation; and
WHEREAS each of the parties hereto acknowledges that they are receiving
good and valuable consideration for the releases and discharges of the
respective claims as set forth above;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties desiring to resolve their disputes and disagreements and
intending to legally bind themselves, hereby agree as follows:
1. Binks agrees to pay to Continental Partners the amount of $825,000
payable in the following manner:
a. $750,000 to be paid in cash or cashier's check on or before July
1, 1998; and
b. The $75,000 balance to be paid in cash or cashier's check on
the earlier date of (a) the sale or merger of Binks or (b) September 4, 1998.
2. In consideration for the undertakings set forth above, by their
signatures hereto, Continental Partners, on behalf of itself, its parents,
subsidiaries, affiliates, successors, predecessors, heirs and assigns and all
past and present officers, directors, employees, agents,
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servants, attorneys and other representatives of any of the foregoing, fully,
finally, unconditionally, irrevocably, and forever release and discharge
Binks, its parents, subsidiaries, affiliates, successors, predecessors, heirs
and assigns and all past and present officers, directors, shareholders,
employees, agents, servants, attorneys and other representatives of any of
the foregoing, who are liable or who might be claimed to be liable in any
manner, from any and all claims, liabilities, causes of action, rights of
action and actions, demands, suits, proceedings, covenants, contracts,
controversies, agreements, promises, accounts, damages, debts, losses,
obligations, costs, fees and expenses or claims for contribution, indemnity
or insurance whether legal or equitable, known or unknown, liquidated or
unliquidated, suspected or unsuspected, claimed or concealed, mentioned or
not mentioned herein, fixed or contingent and without regard to date of
accrual, which Continental Partners ever had, now has, claims to have, or
hereafter can, shall, or may have against any of them, for, upon, or by
reason of any matter, cause or thing whatsoever from the beginning of the
world to the date of this release, including, without limitation, any and all
claims which were or could have been asserted in the Suit or the Chancery
Action.
3. In consideration for the undertakings set forth above, by their
signatures hereto, Binks, on behalf of itself, its parents, subsidiaries,
affiliates, successors, predecessors, heirs and assigns and all past and
present officers, directors, employees, agents, servants, attorneys and other
representatives of any of the foregoing, fully, finally, unconditionally,
irrevocably, and forever release and discharge Continental Partners, its
parents, subsidiaries, affiliates, successors, predecessors, heirs and
assigns and all past and present officers, directors, employees, agents,
servants, attorneys and other representatives of any of the foregoing, who
are liable or who might
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be claimed to be liable in any manner, from any and all claims, liabilities,
causes of action, rights of action and actions, demands, suits, proceedings,
covenants, contracts, controversies, agreements, promises, accounts, damages,
debts, losses, obligations, costs, fees and expenses or claims for
contribution, indemnity or insurance whether legal or equitable, known or
unknown, liquidated or unliquidated, suspected or unsuspected, claimed or
concealed, mentioned or not mentioned herein, fixed or contingent and without
regard to date of accrual, which Binks ever had, now has, claims to have, or
hereafter can, shall, or may have against any of them, for, upon, or by
reason of any matter, cause or thing whatsoever from the beginning of the
world to the date of this release, including, without limitation, any and all
claims which were or could have been asserted in the Suit or the Chancery
Action.
4. In consideration for the undertakings set forth above, by their
signatures hereto, Binks, on behalf of itself, its parents, subsidiaries,
affiliates, successors, predecessors, heirs and assigns and all past and present
officers, directors, employees, agents, servants, attorneys and other
representatives of any of the foregoing, fully, finally, unconditionally,
irrevocably, and forever release and discharge Xxxxxx Xxxxxx & Xxxxx, its
successors, predecessors, heirs and assigns and all past and present partners,
shareholders, employees, agents, servants, attorneys and other representatives
of any of the foregoing, who are liable or who might be claimed to be liable in
any manner, from any and all claims, liabilities, causes of action, rights of
action and actions, demands, suits, proceedings, covenants, contracts,
controversies, agreements, promises, accounts, damages, debts, losses,
obligations, costs, fees and expenses or claims for contribution, indemnity or
insurance whether legal or equitable, known or unknown, liquidated or
unliquidated, suspected or unsuspected, claimed or concealed, mentioned or not
mentioned herein, fixed or contingent and
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without regard to date of accrual, which Binks ever had, now has, claims to
have, or hereafter can, shall, or may have against any of them, for, upon, or
by reason of any matter, cause or thing whatsoever from the beginning of the
world to the date of this release, including, without limitation, any and all
claims which were or could have been asserted in the Suit or the Chancery
Action.
5. In consideration for the undertakings set forth above, by their
signatures hereto, Xxxxxx Xxxxxx & Xxxxx, on behalf of itself, its successors,
predecessors, heirs and assigns and all past and present partners, shareholders,
employees, agents, servants, attorneys and other representatives of any of the
foregoing, fully, finally, unconditionally, irrevocably, and forever release and
discharge Binks, its parents, subsidiaries, affiliates, successors,
predecessors, heirs and assigns and all past and present officers, directors,
shareholders, employees, agents, servants, attorneys and other representatives
of any of the foregoing, who are liable or who might be claimed to be liable in
any manner, from any and all claims, liabilities, causes of action, rights of
action and actions, demands, suits, proceedings, covenants, contracts,
controversies, agreements, promises, accounts, damages, debts, losses,
obligations, costs, fees and expenses or claims for contribution, indemnity or
insurance whether legal or equitable, known or unknown, liquidated or
unliquidated, suspected or unsuspected, claimed or concealed, mentioned or not
mentioned herein, fixed or contingent and without regard to date of accrual,
which Xxxxxx Xxxxxx & Xxxxx ever had, now has, claims to have, or hereafter can,
shall, or may have against any of them, for, upon, or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the date of this
release, including, without limitation, any and all claims which were or could
have been asserted in the Suit or the Chancery Action.
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6. Binks and Continental Partners agree that within ten (10) days of the
execution of this settlement agreement they shall each execute a stipulation to
dismiss their respective foregoing lawsuits with prejudice and without costs,
and all parties hereto agree to bear their own costs and attorneys' fees.
7. No verbal statements, agreements, promises, undertakings,
arrangements, understandings, or any conduct, act or omission of any party
occurring subsequent to the date of this settlement agreement shall be deemed an
amendment or modification hereof unless reduced to writing and signed by each of
the parties hereto.
8. This settlement agreement constitutes the entire agreement between the
parties and no representations, agreements or understandings of any kind either
written or oral shall be binding upon the parties unless expressly contained
herein.
9. This settlement is a complete and exhaustive statement of the terms of
the parties' agreement, which may not be explained or supplemented by evidence
of consistent additional terms or contradicted by evidence of any prior,
contemporaneous agreement. The parties acknowledge that this agreement is the
product of the parties' negotiations, and the contributions of each, and that no
rule of strict construction of this agreement shall apply against any party
deemed to have been the principal drafter.
10. The parties and all signatories to this agreement hereby acknowledge
that the settlement agreement and release shall be governed by and construed in
accordance with the internal laws of Illinois without regard to conflict of law
principles. The parties hereby acknowledge that they are represented by their
respective attorneys, who have advised their clients regarding all matters
relating to the settlement agreement, including the parties' rights and
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obligations hereunder. Each of the undersigned parties represents that he, she
or it is fully empowered and authorized to enter into, execute, deliver and
perform the terms and conditions of
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the settlement agreement. The parties each represent and warrant that they have
not assigned any of the claims released in this agreement to any other person or
entity. This agreement shall be binding upon each of the parties hereto and
their respective successors and assigns.
11. This agreement may executed in any number of counterparts. Facsimile
copies of executed signature pages shall be deemed to constitute originals for
the purposes of this agreement and shall together constitute one and the same
legal instrument.
IN WITNESS WHEREOF, we have set our hands and seals this 11th day of June,
1998.
BINKS XXXXX CORPORATION CONTINENTAL PARTNERS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
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Its: President and CEO Its: Assistant Secretary
XXXXXX XXXXXX & XXXXX
By: /s/ Xxxxx X. Xxxxxxx
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Its: Partner
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