SETTLEMENT AND RELEASE AGREEMENT
This SETTLEMENT AND RELEASE AGREEMENT (the "SETTLEMENT AGREEMENT") is
made and entered into as of April 2, 2007, by and among: (i) Tecumseh Products
Company, a Michigan corporation (the "COMPANY"); (ii) Xxxxxxx Foundation, a
Michigan nonprofit corporation, Xxxx X. Xxxxxxx and Xxxx Xxxxxxx, each in their
capacity as trustee for the Xxx X. Xxxxxxx and Xxxxx X. Xxxxxxx Trusts u/a/d
February 26, 1949 and February 24, 1956 f/b/o Xxxx X. Xxxxxxx and his
descendants and Xxx X. Xxxxxxx and Xxxxx X. Xxxxxxx Trusts u/a/d February 26,
1949 and February 24, 1956 f/b/o Xxxx Xxxxxxx and her descendants (the "Xxxxxxx
Trusts"), Xxxx X. Xxxxxxx, Xxxx X. Xxxxxxx and Xxxxxxx Xxxxxxxxx, each in their
capacity as members of the Board of Trustees of Xxxxxxx Foundation, Xxxx X.
Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxxx, and Xxxx Xxxxxxx, each in their
individual capacities (collectively referred to herein as the "XXXXXXX
ENTITIES"); and (iii) Xxxxxx X. Xxxx, Xxxxx Xxxxx, and Xxxxx X. Xxxxxx, each in
their capacity as directors of the Company and collectively referred to herein
as the "DEFENDANT DIRECTORS." The Company, the Xxxxxxx Entities and the
Defendant Directors, and any subsequent Person that becomes a party hereto in
accordance with the terms hereof, are each referred to herein as a "PARTY," and
collectively, the "PARTIES."
WITNESSETH:
WHEREAS AlixPartners, LLP, through its affiliate AP Services, LLC
("ALIXPARTNERS") is currently engaged to work on a turnaround plan for the
Company;
WHEREAS Xxxxx Xxxxxxx has been appointed interim President and Chief
Operating Officer ("COO") of the Company pending selection of a Chief Executive
Officer (the "CEO"), the hiring of a CEO being a condition required by that
certain Amended And Restated Second Lien Credit Agreement, dated as of November
13, 2006 (as the same has heretofore been amended and as it may be further
amended, supplemented or otherwise modified from time to time, the "SECOND LIEN
CREDIT AGREEMENT") among the Company, Tricap Partners, LLC, as Lender (the
"SECOND LIEN LENDER"), Tricap Partners II L.P. as Administrative Agent (the
"SECOND LIEN ADMINISTRATIVE AGENT") and Citicorp USA, Inc., as Collateral Agent
for the Secured Parties;
WHEREAS, on March 6, 2007, Xxxxxxx Foundation and Xxxx Xxxxxxx
commenced an action against the Company and the Defendant Directors in the
Circuit Court for the County of Lenawee, State of Michigan, Case No. 07-2525-CZ
(the "STATE COURT ACTION"), requesting that the court declare as void and of no
force or effect resolutions passed by the Board of Directors of the Company (the
"BOARD") on February 28, 2007 increasing the size of the Board to seven members,
amending the Company's bylaws, and removing Xxxx Xxxxxxx as Chairman of the
Board, but having him remain as a Board member;
WHEREAS, on March 15, 2007, the Company commenced an action against
each of the Xxxxxxx Entities in the United States District Court for the Eastern
District of Michigan, Case No. 2:07-cv-11144 (the "FEDERAL ACTION," and together
with the State Court Action, the "GOVERNANCE LAWSUITS") requesting that the
court declare certain shareholder voting rights of Xxxxxxx Foundation, the
Xxxxxxx Trusts and Xxxx Xxxxxxx suspended, and enjoin the Xxxxxxx Entities from
exercising those rights;
WHEREAS, the Company, the Xxxxxxx Entities and the Defendant Directors
have agreed to fully and finally settle all their disputes and claims with
respect to the
Governance Lawsuits, as set forth in this Settlement Agreement, which global
settlement will be effected in the manner and subject to the conditions set
forth herein; and
WHEREAS, this Settlement Agreement is being executed in connection
with (i) Amendment Xx. 0 (xxx "XXXXX XXXX XXXXXXXXX") to that certain First Lien
Credit Agreement, dated as of February 6, 2006 (as the same has heretofore been
amended and as it may be further amended, supplemented or otherwise modified
from time to time, the "FIRST LIEN CREDIT AGREEMENT"), among the Company, the
financial institutions from time to time a party thereto as lenders (the "FIRST
LIEN LENDER"), the financial institutions from time to time a party thereto as
issuing banks (the "ISSUERS") and Citicorp USA, Inc., as administrative agent
and collateral agent for the First Lien Lenders and the Issuers (in such
capacities, the "FIRST LIEN ADMINISTRATIVE AGENT"), and (ii) Amendment No. 2 to
the Second Lien Credit Agreement (the "SECOND LIEN AMENDMENT" and together with
the First Lien Amendment, the "AMENDMENTS"), and it is a condition precedent to
the effectiveness of each of the First Lien Amendment and the Second Lien
Amendment that this Settlement Agreement be executed and delivered to the First
Lien Administrative Agent and the Second Lien Administrative Agent,
respectively;
WHEREAS, the First Lien Lender, the First Lien Administrative Agent,
the Second Lien Lender, and the Second Lien Administrative Agent (collectively,
the "LENDER PARTIES"), have agreed to provide the Amendments for the benefit of
the Company and its shareholders;
WHEREAS, each of the Parties recognizes and is aware that a breach of
this Settlement Agreement during the term of the First Lien Credit Agreement and
the Second Lien Credit Agreement will constitute an "Event of Default" under
each of the First Lien Credit Agreement and the Second Lien Credit Agreement;
WHEREAS, each of the Parties has reviewed, or has had the opportunity
to review, this Settlement Agreement with the assistance of their respective
legal and financial advisors of their own choosing.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
Section 1. Composition of the Board.
(a) Resignation of Xxxx Xxxxxxx. Upon execution of this Settlement
Agreement, Xxxx Xxxxxxx will immediately resign from his current position as a
member of the Board, and the Company and the Defendant Directors will cause the
Company's Board of Directors to appoint Xxxx Xxxxxxx as "Chairman Emeritus"
during the term of this Settlement Agreement, subject to his earlier death or
resignation, with Board observer rights, including the right (but not the
obligation) to attend and participate in all meetings of the Company's Board of
Directors (but not the right to vote at any such meeting) and the right to
receive all notices of Board and Board committee meetings and a copy of all
materials provided to any Board member (other than materials provided to members
of standing committees in existence as of the date of this Settlement Agreement
and as to which Xxxx Xxxxxxx does not have observer rights) concurrently with
the provision of the same to any Board member and in the same manner as provided
to such Board member.
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(b) Initial Five Member Board. The Board will initially be comprised
of five members, as follows:
(i) Messrs Xxxxxx, Banks and Xxxxx Xxxxxxx will remain as
independent directors.
(ii) Xxxx Xxxxxxx will replace Xxxx Xxxxxxx as a member of the
Board and shall be nominated and recommended by the Company
for election as a director of the Company during the term of
this Settlement Agreement (including, without limitation, at
the 2007 Annual Meeting of Shareholders), subject only to
his earlier death or resignation.
(iii) Upon the execution of this Settlement Agreement, a search
committee will be charged with immediately locating a
director with restructuring experience reasonably acceptable
to the independent members of the Board and who is not
affiliated with AlixPartners. Upon the earliest of (1) 60
days following the appointment of the CEO, but in no event
later than 120 days after the date of this Settlement
Agreement, and (2) such time as a replacement director with
restructuring experience and who is not affiliated with
AlixPartners is appointed, Xxxxxx Xxxx will resign from his
current position as a member of the Board and of all Board
committees of which he is a member and from all other
positions he holds with the Company or any of its
Subsidiaries; provided, however, that Xx. Xxxx'x director
position must eventually be filled by a director with
restructuring experience who is reasonably acceptable to the
independent directors of the Board and in accordance with
the Company's bylaws.
(iv) Each Board member shall have the right to attend and
participate in all meetings of the Company's Board of
Directors and the right to receive all notices of Board and
Board committee meetings and a copy of all materials
provided to any Board member (other than materials provided
to members of standing committees in existence as of the
date of this Settlement Agreement as to which the receiving
Board member is not a member) concurrently with the
provision of the same to any Board member and in the same
manner as provided to such Board member.
(c) Expansion to Seven Member Board. Upon the hiring of a CEO, the
Board will expand and be comprised of two additional members, for a total of
seven members, for the term of this Settlement Agreement, as follows:
(i) The CEO will be appointed to the Board and will become the
Chairman of the Board.
(ii) So long as, at the time of his appointment, Xxxxxx Lebowski
qualifies as an "independent" director, Xxxxxx Lebowski will
be appointed to the Board and shall be nominated and
recommended by the Company for election as a director of the
Company during
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the term of this Settlement Agreement, subject only to his
earlier death or resignation. The Company and the Defendant
Directors acknowledge that, based on materials provided to
date in support of Xxxxxx Lebowski's nomination to the
Board, they are not aware of any facts and circumstances
that would lead them to conclude that Mr. Lebowski is not
"independent." The Parties agree, however, that between the
date hereof and the time of his proposed appointment, Mr.
Lebowski will meet with the members of the Board and provide
any additional materials the Board reasonably requests. If,
after receiving the requested information, the Board is
unable to determine Mr. Lebowski's independence, the Parties
agree to defer the matter to mutually acceptable counsel
and, so long as an opinion of reputable counsel is delivered
to the Company stating that it would be reasonable for the
Board to conclude that Mr. Lebowski is independent, he shall
be appointed to the Board. If Xxxxxx Lebowski is not
determined to be "independent," Xxxx Xxxxxxx will propose
two nominees to fill the seventh Board seat. The independent
directors will select one of the proposed nominees, whose
independence shall be determined in accordance with the
protocol described in this paragraph. In the event such
nominee is determined not to be independent, the nomination
and independence determination process set forth in this
paragraph recommences until such time as a candidate is
appointed.
(d) Conduct of Board Business. For the term of this Settlement
Agreement all of the Company's business and affairs conducted by
members of the Board of Directors as directors of the Company
shall be conducted at meetings of the Board of Directors (or
actions by unanimous written consent in lieu of such meetings),
except for (i) business conducted through the standing committees
of the Board of Directors in existence as of the date of this
Settlement Agreement and consistent with their authority as of
the date of this Settlement Agreement or (ii) business conducted
by committees hereafter created upon unanimous Board approval
(collectively, the "Permitted Committees"). For purposes of this
provision, any committee appointed pursuant to section 1(b)(iii)
of this Settlement Agreement (for the purpose of finding a
replacement director with restructuring experience) shall be
created by a majority vote of the Board of Directors and shall be
included in the definition of Permitted Committees.
Section 2. Management Roles.
(a) CEO. The search for a CEO will continue and all information
relating to potential candidates will be shared with all members of the Board.
The selection of a CEO will be decided by a vote of the full five member Board
as set forth in Section 1(b) hereto; provided, however, that the provisions of
this Section 2(a) shall not be deemed to amend or otherwise alter the provisions
of Section 7.14 of the Second Lien Credit Agreement. Xxxxx Xxxxxxx shall not be
the CEO.
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(b) AlixPartners. Xx. Xxxxxxx will remain interim President and COO of
the Company, and AlixPartners will continue to provide turnaround services to
the Company, at the discretion of the Company's Board of Directors until such
time as the CEO has been transitioned. Thereafter, the continued provision of
services by Xx. Xxxxxxx and AlixPartners to the Company, if any, will be subject
to the discretion of the Company's Board of Directors and shall be conducted at
the discretion of the CEO subject to the terms of the Company's agreement with
AlixPartners.
(c) Xxxx Xxxxxxx. The Parties agree that Xxxx Xxxxxxx will serve as a
consultant to the Company in such capacity as to be determined by the new CEO,
as applicable; provided, however, that Xx. Xxxxxxx will not be compensated for
such consulting services, but will be entitled to reimbursement of all
reasonable and documented expenses incurred in providing such services.
(d) Xxxx Xxxxxxx. The Parties agree that the determination to rehire
Xxxx Xxxxxxx and the capacity of such hiring will be decided by the CEO. If Xxxx
Xxxxxxx is rehired, he will receive an agreement to provide him with a lump sum
severance upon termination equal to one year's salary less any salary paid to
him from the date he is rehired through the date of his termination, payable on
termination. If the CEO has not hired Xxxx Xxxxxxx within three months of his
appointment, Xxxx Xxxxxxx will be entitled to a lump sum severance payment equal
to one year's salary as was in effect immediately prior to his January 19, 2007
termination date.
Section 3. Dismissal of Governance Lawsuits. Immediately upon execution of
this Settlement Agreement, the Company, the Director Defendants, Xxxx Xxxxxxx,
Xxxxxxx Foundation, and the other Xxxxxxx Entities will dismiss, with prejudice,
the Governance Lawsuits; provided, however, that nothing herein shall in any way
limit the rights of any third parties, including shareholders, that are not
parties to this Settlement Agreement. The Company and the Director Defendants
acknowledge and agree that the Xxxxxxx Entities have the right to vote all of
their voting shares in the Company with respect to all matters subject to a vote
of shareholders of the Company. The Company and the Director Defendants agree
not to claim or assert, or aid, assist or encourage any other person in claiming
or asserting, based upon actions or events occurring on or before the date of
this Settlement Agreement or based upon the existence, execution, delivery or
performance of this Settlement Agreement, that any of the Xxxxxxx Entities'
shares are not entitled to vote all or any part of their voting shares in the
Company with respect to any or all matters subject to a vote of shareholders of
the Company; provided, however, that such agreement shall in no way limit or in
any way constitute a determination of the rights of any third parties, including
shareholders, that are not parties to this Settlement Agreement. During the term
of this Settlement Agreement, the Company and the Director Defendants agree not
to take any action that is inconsistent with the terms of this Settlement
Agreement. During the term of this Settlement Agreement, the Xxxxxxx Entities
agree to vote for the slate of directors provided for herein in order to
effectuate the terms of this Settlement Agreement.
Section 4. Xxxxxxx Entities' Attorneys' Fees. The Company hereby agrees to
pay the reasonable and documented attorneys' fees and other fees and expenses
incurred by any of the Xxxxxxx Entities in connection with executing, delivering
and performing this Settlement Agreement, pursuing any actions or proceedings
related hereto and any nominations or notices of nominations of directors for
election at the 2007 Annual Meeting of Shareholders, including the Governance
Lawsuits, or consummating the transactions contemplated hereby; provided,
however, that the total amount of attorneys' fees payable
5
under this Section 4 shall not exceed $300,000. Simultaneously with the
execution of this Settlement Agreement, the Company shall pay its reasonable and
documented outstanding invoices to Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx; provided,
however, that the total amount of attorneys' fees payable under this Section 4
shall not exceed $90,000.
Section 5. Covenant to Vote. During the term of this Settlement Agreement,
the Xxxxxxx Entities and the Defendant Directors agree to exercise all of their
respective voting rights in a manner consistent with the terms and conditions
set forth in this Settlement Agreement.
Section 6. Release of the Xxxxxxx Entities by the Company and the Director
Defendants. Upon and following the resignation of Xxxx Xxxxxxx provided for in
Section 1 hereto, and except with respect to the obligations expressly contained
in this Settlement Agreement, each of the Director Defendants and the Company
and, where appropriate, each of their respective directors, officers, managers,
members, trustees, agents, employees, partners, shareholders, subsidiaries,
successors, assigns, and other affiliates hereby release each of the Xxxxxxx
Entities from any and all claims, demands, rights, actions or causes of action,
liabilities, damages, losses, obligations, judgments, suits, matters,
indemnification claims, any claim arising out of issues of any kind or nature
whatsoever, known or unknown, contingent or absolute, suspected or unsuspected,
disclosed or undisclosed, hidden or concealed, matured or unmatured, with
respect to, and in connection with, the matters specifically referenced in this
Settlement Agreement, including, without limitation, the Amendments.
Section 7. Release of the Defendant Directors by the Company and the
Xxxxxxx Entities. Immediately upon execution of this Settlement Agreement, and
except with respect to the obligations expressly contained in this Settlement
Agreement, each of the Xxxxxxx Entities and the Company, and, where appropriate,
each of their respective directors, officers, managers, members, trustees,
agents, employees, partners, shareholders, subsidiaries, successors, assigns,
and other affiliates hereby release the Defendant Directors from any and all
claims, demands, rights, actions or causes of action, liabilities, damages,
losses, obligations, judgments, suits, matters, indemnification claims, any
claim arising out of issues of any kind or nature whatsoever, known or unknown,
contingent or absolute, suspected or unsuspected, disclosed or undisclosed,
hidden or concealed, matured or unmatured, with respect to, and in connection
with, the matters specifically referenced in this Settlement Agreement,
including, without limitation, the Amendments.
Section 8. Release of the Lender Parties by the Company and the Xxxxxxx
Entities. In consideration for their willingness and agreement to enter into the
Amendments for the benefit of the Company and its shareholders, each of the
Xxxxxxx Entities and the Company, and, where appropriate, each of their
respective directors, officers, managers, members, trsutees, agents, employees,
partners, shareholders, subsidiaries, successors, assigns, and other affiliates
hereby release the Lender Parties from any and all claims, demands, rights,
actions or causes of action, liabilities, damages, losses, obligations,
judgments, suits, matters, indemnification claims, any claim arising out of
issues of any kind or nature whatsoever, known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, hidden or
concealed, matured or unmatured, with respect to, and in connection with, the
matters specifically referenced in this Settlement Agreement.
Section 9. Covenant Not to Xxx. Each of the releasing parties in Section 6,
Section 7 and Section 8 agrees not to assert or bring any claim that is released
in any of those
6
sections, and, in addition to any other remedy available to the released
parties, agrees to pay all liabilities, losses and expenses (including, without
limitation, attorneys' fees and costs of investigation) incurred by any released
party as a result of any breach of this Section 9.
Section 10. Non-Disparagement. Upon execution of this Settlement Agreement,
throughout the term of this Settlement Agreement, and for 12 months thereafter,
the Parties shall not make any disparaging statements in a public forum or to
the media concerning the Company, its officers, directors, employees, attorneys,
agents, or contracting parties, or its business or operations; provided,
however, that this non-disparagement agreement shall not in any way prevent the
Parties from disclosing any information to their attorneys or in response to a
lawful subpoena or court order requiring disclosure of information; provided,
further, however, that this non-disparagement agreement shall not in any way
restrict the Parties or their agents in their statements to other directors or
at meetings of the Company's Board of Directors, during their membership on the
board.
Section 11. Term. This Settlement Agreement shall terminate at the earlier
of the conclusion of the 2008 Annual Shareholders Meeting and April 30, 2008;
provided, however, that any provisions of this Settlement Agreement intended to
survive such termination shall be binding on the Parties thereafter.
Section 12. Condition Subsequent. It shall be a condition subsequent to the
effectiveness of this Settlement Agreement that the Amendments are executed and
delivered to the Company within ten business days of the date of this Agreement.
Section 13. Governing Law; Jurisdiction. This Settlement Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Michigan, regardless of the laws that might otherwise govern under applicable
principles of conflict of laws of the State of Michigan. By execution and
delivery of this Settlement Agreement, each of the Parties hereto hereby
irrevocably and unconditionally agrees for itself that any legal action, suit or
proceeding against it with respect to any matter under or arising out of or in
connection with this Settlement Agreement or for recognition or enforcement of
any judgment rendered in any such action, suit or proceeding, shall be brought
in a federal court of competent jurisdiction in the United States District Court
for the Eastern District of Michigan, if such court has subject matter
jurisdiction. By execution and delivery of this Settlement Agreement, each of
the Parties hereto hereby irrevocably accepts and submits to the nonexclusive
jurisdiction of such courts, generally and unconditionally, with respect to any
such action, suit or proceeding.
Section 14. Notices. All demands, notices, requests, consents and
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or by courier service, messenger, facsimile
or, if duly deposited in the mails, by certified or registered mail, postage
prepaid-return receipt requested, and shall be deemed to have been duly given or
made: (a) upon delivery, if delivered personally or by courier service or
messenger, in each case with record of receipt; (b) upon transmission with
confirmed delivery, if sent by facsimile or telecopy; or (c) when received after
being sent by certified or registered mail, postage pre-paid, return receipt
requested, to the following addresses or such other addresses as may be
furnished hereafter by notice in writing, to the following Parties:
7
IF TO THE COMPANY:
Attn: President and Chief Operating Officer
Tecumseh Products Company
000 X. Xxxxxxxxx Xx.
Xxxxxxxx XX 00000
Facsimile: (000) 000-0000
with copies to:
Attn: Xxxx X. Xxxxx
Xxxxxxxx & Xxxxx, LLP
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: 212-446-4900
IF TO THE XXXXXXX ENTITIES:
Xxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Xxxxxxx Foundation
c/o Xxxxxxx Xxxxxxxxx
c/x Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile: 313.465.7633
Xxxxxxx Trusts
x/x Xxxxxxx Xxxxxxxxx
x/x Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile: 313.465.7633
Xxxx Xxxxxxx
0000 Xxxxxxx Xxxxx X.
X.X. Xxx 00000
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
0000 Xxxxxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx
x/x Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxx XXX
0
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile: 313.465.7633
in each case with copies to:
Attn: Xxxx X. Xxxxxx
Barris, Sott, Denn & Driker, P.L.L.C.
000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
IF TO THE DEFENDANT DIRECTORS:
Attn: Xxxxxx X. Xxxx
c/o Xxxx Partners, LLC
0000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxx X. Xxxxx
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
in each case with copies to:
Attn: Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Section 15. Entire Agreement. This Settlement Agreement constitutes the
full and entire understanding and agreement among the Parties with regard to the
subject matter hereof and supersedes all prior agreements with respect to the
subject matter hereof.
Section 16. Headings. The headings of the paragraphs and subparagraphs of
this Settlement Agreement are inserted for convenience only and shall not affect
the interpretation hereof.
Section 17. Successors and Assigns. This Settlement Agreement is intended
to bind and inure to the benefit of the Parties and their respective permitted
successors and assigns.
9
Section 18. Covenant Not to Assign. The Parties hereby agree that no Party
may assign, directly or indirectly, all or part of its rights or obligations
under this Settlement Agreement without the prior written consent of each Party,
which consent shall not be unreasonably withheld or delayed.
Section 19. Specific Performance. Each Party hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Settlement Agreement will cause the other Parties to sustain damages for
which such other Parties would not have an adequate remedy at law for money
damages and, therefore, each Party hereto agrees that, in the event of any such
breach, such other parties shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which such parties may be entitled at
law or in equity.
Section 20. Remedies Cumulative. All rights, powers and remedies provided
under this Settlement Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
right, power or remedy thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
Nothing herein shall impact the rights heretofore existing, if any, of Xxxx
Xxxxxxx or Xxxx Xxxxxxx to receive pension and other benefits as a result of his
prior employment with the Company, its subsidiaries or both. Moreover, nothing
herein shall prohibit the Company, including any and all successors in interest,
from asserting any defenses, objections or any other rights it may have with
respect to any claim by Xxxx Xxxxxxx or Xxxx Xxxxxxx to receive such pension and
other benefits. The Company and the Director Defendants are not presently aware
of any defenses, objections or any other rights the Company may have with
respect to any claim by Xxxx Xxxxxxx or Xxxx Xxxxxxx to receive such pension and
other benefits.
Section 21. No Waiver. The failure of any Party hereto to exercise any
right, power or remedy provided under this Settlement Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other Party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such Party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
Section 22. Counterparts. This Settlement Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
shall constitute one and the same Settlement Agreement. Delivery of an executed
signature page of this Settlement Agreement by facsimile or email shall be as
effective as delivery of a manually executed signature page of this Settlement
Agreement.
Section 23. Severability. Any provision of this Settlement Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction and any such prohibited or unenforceable provision shall be deemed
reformed and construed so that it will be valid, legal and enforceable and not
prohibited to the maximum extent permitted by applicable law.
10
Section 24. Third-Party Beneficiaries. Unless expressly stated herein, this
Settlement Agreement shall be solely for the benefit of the Parties and no other
person or entity shall be a third party beneficiary hereof.
Section 25. Settlement Discussions. This Settlement Agreement is part of a
proposed settlement of a dispute among the Parties. Nothing herein shall be
deemed an admission of any kind. Pursuant to Federal Rule of Evidence 408 and
any applicable state rules of evidence, this Settlement Agreement and all
negotiations relating thereto shall not be admissible into evidence in any
proceeding other than a proceeding to enforce the terms of this Settlement
Agreement.
Section 26. Consideration. It is hereby acknowledged by the Parties hereto
that, other than the agreements, covenants, representations and warranties set
forth herein, no consideration shall be due or paid to any Party for its entry
into this Settlement Agreement.
Section 27. Receipt of Adequate Information; Representation by Counsel.
Each Party acknowledges that it has received adequate information to enter into
this Settlement Agreement and that it has been represented by counsel in
connection with this Settlement Agreement and the transactions contemplated by
this Settlement Agreement. Accordingly, any rule of law or any legal decision
that would provide any party with a defense to the enforcement of the terms of
this Settlement Agreement against such party shall have no application and is
expressly waived. The provisions of the Settlement Agreement shall be
interpreted in a reasonable manner to effect the intent of the Parties.
Section 28. Time of the Essence. Time is of the essence with respect to all
provisions of this Settlement Agreement that specify a time for performance.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties hereto have duly executed and
delivered this Settlement Agreement as of the date first above written.
TECUMSEH PRODUCTS COMPANY
By: /s/ XXXXX XXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President & Chief Operating
Officer
12
IN WITNESS WHEREOF, the Parties hereto have duly executed and
delivered this Settlement Agreement as of the date first above written.
XXXXXXX FOUNDATION
By: /s/ XXXX X. XXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
XXXX X. XXXXXXX, INDIVIDUALLY, AS
TRUSTEE FOR THE XXXXXXX TRUSTS AND AS A
MEMBER OF THE BOARD OF TRUSTEES OF
XXXXXXX FOUNDATION
/s/ XXXX X. XXXXXXX
------------------------------------
XXXX XXXXXXX, INDIVIDUALLY AND AS
TRUSTEE FOR THE XXXXXXX TRUSTS
/s/ XXXX X. XXXXXXX
------------------------------------
XXXX X. XXXXXXX, INDIVIDUALLY AND AS A
MEMBER OF THE BOARD OF TRUSTEES OF
XXXXXXX FOUNDATION
/s/ XXXX X. XXXXXXX
------------------------------------
XXXXXXX XXXXXXXXX
/s/ XXXXXXX XXXXXXXXX
------------------------------------
IN WITNESS WHEREOF, the Parties hereto have duly executed and
delivered this Settlement Agreement as of the date first above written.
XXXXXX X. XXXX
By: /s/ XXXXXX XXXX
--------------------------------
XXXXX XXXXX
By: /s/ XXXXX XXXXX
--------------------------------
XXXXX X. XXXXXX
By: /s/XXXXX X. XXXXXX
--------------------------------
