EXHIBIT 10.3
ASSIGNMENT OF CLAIMS AND RELEASE
THIS ASSIGNMENT OF CLAIMS AND) RELEASE is made, entered into and
effective as of this 26th day of May, 2003, by and between, XXXXX X. XXXXX and
XXXXXX X. XXXXXXXXX individuals of Lexington, Fayette County, Kentucky
(`Plaintiffs") and XXXXXXX JEWELERS, INC. a Delaware corporation with it
principal place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
("Defendant") and DDJ CAPITAL MANAGEMENT, LLC ("DDJ"), and BIII CAPITAL
PARTNERS, L.P., and BIIIA CAPITAL PARTNERS, LP.
WITNESSETH:
WHEREAS, Plaintiffs are the former owners of C&H Xxxxx, Inc., having
sold all their shares of C&H Xxxxx, Inc. to Defendant on or about October 20,
1999; and
WHEREAS, as part of that the sale of C&H Xxxxx, me, Defendant
executed certain Promissory Notes dated November 24, 1999 with varying Maturity
Dates; and
WHEREAS, Plaintiffs have filed a lawsuit against Defendant for monies
owed to Plaintiffs on the Promissory Notes in the action styled Xxxxx X. Xxxxx
and Xxxxxx X. Xxxxxxxxx x. Xxxxxxx Jewelers, Inc., Fayette Circuit Court, Civil
Action number 01-CI-3073 (herein alter referred to as the "Pending Action"); and
WHEREAS, Defendant has asserted counterclaims in the Pending Action
against Plaintiffs; and
WHEREAS, Plaintiffs desire to assign all their rights, title and
interest in the Promissory Notes and the Pending Action to Xxxx Capital
Partners, LY. and BHIA Capital Partners, LP.
NOW, THEREFORE, Plaintiffs, Defendant and DDJ agree as follows:
1. Release of Claims: Subject to and without prejudice to the
assignment of claims as set forth below, Plaintiffs, on behalf o themselves and
their spouses, hereby forever release, for themselves and their heirs, legal
representatives, agents, successors, assigns, officers, directors, shareholders,
employees, attorneys, guarantors, sureties, and any person acting on their
behalf, the Defendant, DDJ, all of its affiliates and funds, and Defendant and
DDJ's officers directors, employees, agents, attorneys, and assigns from any and
all injuries, losses, damages, liabilities, defenses, claims, actions, causes of
action, suits, debts, promises, demands, or agreements of whatever nature or
kind, known and unknown, whether based in law or in equity, that the Plaintiffs,
ever had or now have or that anyone claiming through or under the Plaintiffs may
have or claim to have, which were raised or asserted or could have been raised
or asserted by the Plaintiffs against the Defendant, at any time prior to the
execution of this Agreement, including, but not limited to, any and all claims
arising out of, by reason of, or in any way related to the Pending Action.
Subject to and without prejudice to the assignment of claims as set
forth below, Defendant and DDJ hereby forever release for themselves and their
agents, successors, assigns, officers, directors, shareholders, employees,
attorneys, and any person acting on their behalf, the Plaintiffs, their spouses,
and their heirs, legal representatives, agents, successors, assigns, guarantors,
sureties from any and all injuries, losses, damages, liabilities, defenses,
claims, actions, causes of action, suits, debts, promises, demands, or
agreements, of whatever nature or kind, known and unknown, whether based in law
or in equity, that the Defendant or DDJ ever had or now have, or that anyone
claiming through or under the Defendant or DDJ may have or claim to have, which
were raised or asserted or could have been raised or asserted by the Defendant
or DDJ against the Plaintiffs at any time prior to the execution of this
Agreement, including, but not limited to, any and all claims arising out of, by
reason of, or in any way relating to the Pending Action.
2. Payment: Upon execution of this Assignment of Claims and Release,
Xxxx Capital Partners. L.P. and BHIA Capital Partners, L.P. shall pay to
Plaintiffs Five Hundred Thousand Dollars ($500,000).
3. Assignment of Claims: Plaintiffs assign, endorse, and transfer,
without recourse, to PHI Capital Partners, L.P. and BIHAR Capital Partners, LP.
all right, title and interest, either of them may have in the Pending Action,
the Promissory Notes by and between Xxxxxxx Jewelers and Xxxxx and Xxxxxxxxx and
all claims that Plaintiffs may have against Defendant arising out of the sale of
C&H Ranch, Inc., including, but not limited to:
a. Promissory Note of $2,000,000.00 dated November 24, 1999
with Maturity Date of January 15, 2001.
b. Promissory Note of $2,000,000.00 dated November 24, 1999
with Maturity Date of January 15, 2002.
4. Dismissal Of Claims: Plaintiff shall dismiss the Complaint and
Amended Complaint in the Pending Action without prejudice and shall further
execute all documents necessary to transfer their interest in the Pending Action
to DDJ. Defendant shall dismiss with prejudice the counterclaims in the Pending
Action, each party to bear its own legal fees and costs.
5. Nondisclosure: The parties hereto agree that the terms and
conditions of this Agreement, and all terms and conditions of the settlement
evidenced by this Agreement will not be disclosed to any person (except
attorneys and accountants) or any entity, except pursuant to court order or
other legal requirements.
6. Representations and Warranties: Plaintiffs, and their spouses,
warrant, affirm and represent they have the authority and capacity to execute
this Assignment of Claims and Release and that they have not transferred, sold,
assigned or in any way conveyed their interest to any third party, in whole or
part, of any claims they have or may have against Defendant not expressly stated
herein. Plaintiffs, and their spouses, understand and agree that upon the
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execution of this Assignment and Release of Claims they have kept no claims of
any kind against Defendant. Plaintiffs also understand and agree that to the
best of their knowledge, no one has any claim against Defendant arising out of
the sale of C&H Xxxxx, Inc. to Defendant, other than those identified herein.
7. Governing Law: This Assignment of Claims and Release is to be
governed and construed in accordance with the laws of the Commonwealth of
Kentucky.
8. Entire Agreement: This Assignment of Claims and Release may not be
amended or modified except by written agreement.
9. Additional Documents: Plaintiffs shall cause the necessary papers
to he executed and shall take all steps necessary to insure that this Assignment
of Claims and Release shall be valid, binding and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx X. Xxxxx, spouse of Xxxxx X. Xxxxx
/s/ Xxxxx Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, spouse of Xxxxxx X. Xxxxxxxxx
XXXXXXX JEWELERS, INC.
By: /s/ Xxxxx XxXxxxxxxx
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Its: President and CEO
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DDJ CAPITAL MANAGEMENT, LLC.
By: /s/ Xxxx X. Xxxxxxx
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Its: Member
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BIII CAPITAL PARTNERS, L.P.
By: DDJ Capital III, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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Its: Member
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BIIIA CAPITAL PARTNERS, L.P.
By: GP III-A, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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Its: Member
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