EXHIBIT 10.1
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is entered into as of the 30th day of June, 1999
by and between the Xxxxxx Stockholders Trust ("Trust") and Xxxxxx, Fargo & Co.
("LFC"). Trust and LFC may be referred to collectively as the "Parties" or
either of them individually as the "Party." Capitalized terms in this Agreement
which are not herein defined shall have the meaning ascribed to them in the
Contribution Agreement (as hereinafter defined).
WHEREAS, Trust and LFC, among other parties, entered into the Contribution
Agreement dated as of November 28, 1996 (as amended, the "Contribution
Agreement") whereby, among other things, the Parties agreed to defend and
indemnify each other for certain stated losses and liabilities;
WHEREAS, under the Contribution Agreement, Trust agreed to defend and
indemnify LFC for certain stated losses and liabilities related to the
operations of Xxxxxx Armored Inc. and its subsidiaries ("Xxxxxx Armored") prior
to the business combination and for breaches of the representations and
warranties of Xxxxxx Armored in the Contribution Agreement, subject to the
limitations set forth in the Contribution Agreement;
WHEREAS, LFC has submitted claims to Trust for indemnification related to
Xxxxxx Armored environmental matters, tax liabilities and casualty and employee
claims;
WHEREAS, concurrently with the execution hereof, LFC is entering into a
release agreement with Mayne Xxxxxxxx Incorporated pursuant to which Mayne
Xxxxxxxx is paying to LFC $184,700 in cash (the "Mayne Xxxxxxxx Settlement
Amount"), which LFC believes is sufficient to satisfy all such environmental
claims; and
WHEREAS, the Parties desire to globally resolve and settle all actual or
potential claims, liabilities and obligations that LFC has or may have in the
future against Trust and its affiliates under the Contribution Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants, undertakings and conditions herein, and for other good and valuable
consideration, the adequacy of which is hereby acknowledged, the Parties agree
as follows:
1. Consideration. Trust has provided valuable assistance in the recovery of the
Mayne Xxxxxxxx Settlement Amount. In addition, within 30 days after this
Settlement Agreement is executed, Trust will pay to LFC, via wire transfer,
three hundred forty-four thousand dollars and no cents ($344,000).
2. Releases and Indemnification. LFC, on behalf of itself and its current and
former officers, directors, employees, agents, stockholders (other than
Trust), attorneys, subsidiaries, predecessors, successors and assigns, or
anyone claiming by, through, or under them, hereby releases, relinquishes
and forever discharges Trust, its current and former parents, subsidiaries,
trustees, affiliated companies (with the exception of LFC), and their
respective predecessors, successors, assigns, and all their respective
current and former trustees, officers, directors, employees, agents,
stockholders, attorneys, heirs and representatives, from and against any
and all Indemnifiable Losses arising out of or in any way connected with,
directly or indirectly, any acts, omissions to act, or any other form of
obligation or omission by Trust, or any of its aforementioned privies,
arising under the Contribution Agreement or related to any claim,
liability, or obligation arising out of or related to Xxxxxx Armored
(including, without limitation, any claims previously made under notice
letter from LFC to Trust dated December 29, 1998), which LFC or any of its
aforementioned privies, and their respective successors and assigns ever
had, now have, or hereafter may have, whether grounded in tort or contract
or otherwise, in any and all courts or other forums, of whatever kind or
nature, whether known or unknown (collectively, "Released Claims"). LFC
agrees to defend and indemnify Trust, and all of its aforementioned
privies, for any of the Released Claims made by any third party and Trust
agrees to provide LFC with prompt written notice of any such third party
claim. Furthermore, for any third party claim that LFC accepts the
obligation to defend and indemnify Trust and all of its aforementioned
privies under this section, LFC has the right to control the defense or
settlement of such third party claim; provided, however, LFC will not agree
to settle any third party claim in a manner which would result in any
additional cost, expense, liability or loss to Trust or the aforementioned
privies. Notwithstanding anything to the contrary herein, the foregoing
release shall not extend to or be construed to release the Parties'
obligations under this Settlement Agreement.
3. Miscellaneous.
(a) This Settlement Agreement may be executed and delivered in multiple
counterparts, each of which when so executed and delivered shall be an
original, which collectively shall together constitute one and the
same instrument and agreement.
(b) This Settlement Agreement is solely for the benefit of the Parties and
such other persons to the extent identified and provided herein, and
no provision of this Settlement Agreement shall be deemed to confer
upon other third parties any remedy, claim, liability, reimbursement,
cause of action or other right.
(c) This Settlement Agreement shall be binding upon and inure to the
benefit of Trust, its current and former trustees, parents,
subsidiaries and affiliates, and their respective predecessors,
successors and assigns, and the former
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and current officers, directors, trustees, employees, agents,
attorneys, and stockholders of all such parties and LFC, its current
and former parents, subsidiaries and affiliates, and their respective
predecessors, successors and assigns, and the former and current
officers, directors, employees, agents, attorneys, and stockholders of
all such parties.
(d) The Parties represent and warrant that they have entered into this
Settlement Agreement based upon their own independent assessment of
the rights and obligations of the Parties and not based upon any
representations (other than as provided herein) made by the other
Party to this Settlement Agreement.
(e) All understandings and agreements, written or oral, heretofore related
to the subject matter addressed in this Settlement Agreement by and
between Trust and LFC are merged into this Settlement Agreement, which
fully and completely expresses their agreement. This Settlement
Agreement constitutes the entire agreement between Parties related to
the subject matter hereof. This Settlement Agreement may not be
amended or modified, except by a written amendment duly executed by
the Parties.
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IN WITNESS WHEREOF, the Parties hereto have caused this Settlement
Agreement to be executed by their authorized representatives as of the day and
year first written above.
LOOMIS STOCKHOLDERS TRUST
By: /s/ Xxxxxxxxx X. Xxxx, Xx.
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Xxxxxxxxx X. Xxxx, Xx.
Manager
XXXXXX, FARGO & CO.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxx, Xx.
Executive Vice President and
Chief Financial Officer
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