Exhibit 10.10
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and
entered this 28th day of December 2000 between and among Xxxxxx X. Xxxxxx, RDO
Equipment Co. (RDO), its affiliates and subsidiaries (hereinafter collectively
"RDO Parties"), Xxxx Deere Construction Equipment Company ("Deere"), its
affiliates and subsidiaries (Hereinafter collectively "Deere Parties") and
Nortrax, Inc., its affiliates and subsidiaries (hereinafter collectively
"Nortrax Parties").
WHEREAS, certain claims, disputes and controversies have arisen
between and among the parties which have resulted in the filing of the
arbitration action entitled Xxxx Deere Construction Equipment Company and
affiliates, RDO Equipment Co. and affiliates, and Nortrax, L.L.C., AAA Case No.
51 180 0036000 in Chicago, Illinois (the "arbitration") and court actions
entitled RDO Equipment Co., et al. V. Nortrax, L.L.C. et al., Case No.
CT00-009838, filed in the District Court, Fourth Judicial District, County of
Hennepin, State of Minnesota and RDO Construction Equipment Co., et al. V.
Credit Suisse First Boston Corporation, et al. Case No. A3-00-146, filed in the
United States District Court for the District of North Dakota (the arbitration
and the court actions hereinafter collectively, the "Actions");
WHEREAS, Xxxxxx, the RDO Parties, the Deere Parties and the Nortrax
Parties desire to resolve such claims, disputes and controversies, and avoid
further costs of litigation;
NOW, THEREFORE, in consideration of the parties' ongoing business
relationship and the dismissal of the Actions described above, the parties
hereby settle, release and agree as follows:
1. Nothing contained in the Agreement shall be construed as any
admission of liability by a party or any concession with respect
to the merits or lack of merit of any claim or defense of any
party.
2. The RDO Parties for themselves and their officers, directors,
agents, employees, attorneys, successors, heirs and assigns
(collectively, the "RDO Releasors"), for good and valuable
consideration, the receipt of which is hereby acknowledged,
forever remise, release and discharge and covenant not to xxx
Xxxx Deere Construction Equipment Company, and its past, present
and future parents, subsidiaries, divisions, affiliates,
predecessors, shareholders, officers, directors, agents,
employees, representatives, attorneys, heirs, successors and
assigns (all of whom are collectively referred to as the "Deere
Releases"), Nortrax, Inc. and its past, present and future
parents, subsidiaries, division, affiliates, predecessors,
shareholders, officers, directors, agents, employees,
representatives, attorneys, heirs, successors and assigns and
Nortrax II, Inc., and its past, present and future parents,
subsidiaries, divisions, affiliates, predecessors, shareholders,
officers, directors, agents, employees, representatives,
attorneys, heirs, successors and assigns (all of whom are
collectively referred to as the "Nortrax Releasees") of and from
any and all claims, demands, causes and rights of action, suits,
defenses, debts, rights, sums of money, accounts, bills,
contracts, agreements, liabilities, damages, costs, expenses,
attorneys' fees and any other liabilities or obligations, known
or unknown, alleged or unalleged, now existing or hereafter
arising out of or relating to or resulting from any actions,
conduct, contracts, omissions or other matter of any kind or
nature whatsoever, to and including the date of this Agreement in
any forum, including state and federal court or arbitration or
administrative agency, including but not limited to any claim
that has been made, could have been made or may be made in the
Actions, provided, however, that this Agreement shall not release
or discharge the Deere Releasees from any obligations under other
written agreements between any RDO Party and Deere Party with
respect to sales or marketing programs and product support,
finance, and/or dealer recognition programs provided to Xxxx
Deere Construction Equipment dealers, and further provided that
this Agreement shall not release or discharge the Nortrax
Releasees from their obligations in any direct business dealings
with the RDO Releasors that are unrelated to the allegations and
matters that are the subject of the Actions.
3. The Deere Parties for themselves and their officers, directors,
agents, employees, attorneys, successors, heirs and assigns
(collectively, the "Deere Releasors"), for good and valuable
consideration, the receipt of which is hereby acknowledged,
forever remise, release and discharge and covenant not to xxx the
RDO Parties, and their past, present and future parents,
subsidiaries, divisions, affiliates, predecessors, shareholders,
officers, directors, agents, employees, representatives,
attorneys, heirs successors and assigns (all of whom are
collectively referred to as the "RDO Releasees") of and from any
and all claims, demands causes and rights of action, suits,
defenses, debts, rights, sums of money, accounts, bills,
contracts, agreements, liabilities, damages, costs, expenses,
attorneys' fees, and any other liabilities or obligations, known
or unknown, alleged or unalleged, now existing or hereafter
arising out of or relating to or resulting from any actions,
conduct, contracts, omissions or other matter of any kind or
nature whatsoever, to and including the date of this Agreement in
any forum, including state and federal court or arbitration or
administrative agency, including but not limited to any claim
relating in any way to any claim that has been made, could have
been made or may be made in the Actions, provided, however, that
this Agreement shall not release or discharge the RDO Releasees
from any claim or obligation under any other written agreement
between any Deere Party and RDO Party pertaining to indebtedness
or obligations owed to the Deere Releasors by the RDO Releasees
for products, services or financing, or pertaining to RDO
Releasees' obligations under retail or wholesale financing or
leasing arrangements, repurchase agreements, leases, government
buy-back agreements, bonding agreements or insurance agreements.
4. The Nortrax Parties for themselves and their officers, directors,
agents, employees, attorneys, successors, heirs and assigns
(collectively, the "Nortrax Releasors"), for good and valuable
consideration, the receipt of which is hereby acknowledged,
forever remise, release and discharge and covenant not to xxx the
RDO Releasees of and from any and all claims, demands, causes and
rights of action, suits, defenses, debts, rights, sums of money,
accounts, bills, contracts, agreements, liabilities, damages,
costs, expenses, attorneys' fees, and any other liabilities or
obligations, known or unknown, alleged or unalleged, now existing
or hereafter arising out of or relating to or resulting from any
actions, conduct, contracts, omissions or other matter of any
kind or nature whatsoever, to and including the date of this
Agreement in any forum, including state and federal court or
arbitration or administrative agency, including but not limited
to any claim relating in any way to any claim that has been made,
could have been made or may be made in the Actions, provided,
however, that this Agreement shall not release or discharge the
RDO Releasees from their obligations in any direct business
dealings with the Nortrax Releasors that are unrelated to the
allegations and matters that are the subject of the Actions.
5. The parties hereto acknowledge that some RDO parties and Xxxxx
Xxxxxxxx are parties to certain written agreements. ("Frambers'
Agreements"). The parties hereto expressly acknowledge and agree
that the release language herein shall not release or discharge
Xx. Xxxxxxxx from any future obligations, but only actions in the
past, under the Frambers' Agreements, and shall not release or
discharge any RDO Party from any obligations under the Frambers'
Agreements. Further, the RDO Releasors acknowledge and agree
that, in addition to the release in paragraph 2 herein, the RDO
Releasors release and discharge the Nortrax Releasees from any
obligations, claims, or liabilities (including those set forth in
the Frambers' Agreements) arising solely from the fact that any
Nortrax Party continues to employ Xxxxx Xxxxxxxx. The RDO
Releasors acknowledge and agree that the Nortrax Releasees (other
than Xxxxx Xxxxxxxx) have no obligations to the RDO Parties under
the Frambers' Agreements.
6. The RDO Parties agree that the Deere Parties shall have the sole
discretion to determine whether the RDO Parties or any other
entity shall be appointed to any additional areas of
responsibility, and
a. that the RDO Parties shall have no claim and that they shall
pursue no claim, in law or in equity, in arbitration or
litigation, against the Deere Parties or the Nortrax Parties
after the date of this Agreement arising from RDO's failure
to be appointed by the Deere Parties to any additional area
of responsibility;
b. that the RDO Parties shall have no claim and that they shall
pursue no claim, in law or in equity, in arbitration or
litigation, against the Deere Parties, the Nortrax Parties
or any other entity owning a Deere dealer in which Deere has
an ownership interest ("Nortrax X") for any action or
inaction by the Deere Parties, the Nortrax Parties, Nortrax
X, or any Credit Suisse First Boston entity ("CSFB") on and
after the date of this Agreement, concerning any acquisition
or investment in any other Deere dealer occurring during the
period that the Deere Parties have a direct or indirect
equity investment in the Nortrax Parties or Nortrax X;
c. that the RDO Parties shall have no claim and that they shall
pursue no claim, in law or in equity, in arbitration or
litigation, against the Nortrax Parties for any action or
inaction by the Deere Parties, the Nortrax parties, Nortrax
X, or CSFB on and after the date of this Agreement,
concerning any acquisition or investment in any other Deere
dealer occurring during the period that the Deere Parties or
CSFB have a direct or indirect equity investment in the
Nortrax Parties;
d. that the RDO Parties agree that they shall have no claim and
that they shall pursue no claim, in law or in equity, in
arbitration or litigation, against CSFB for any action or
inaction by the Deere Parties, the Nortrax Parties, Nortrax
X, or CSFB on and after the date of this Agreement,
concerning any acquisition or investment in any other Deere
dealer occurring during the period that CSFB has a direct or
indirect equity investment in the Nortrax Parties or Nortrax
X.
7. All claims pending in the Arbitration shall be withdrawn and the
parties to the Arbitration shall notify the arbitration panel and
the American Arbitration Association that the matter has been
settled.
8. All claims pending against the CSFB in Federal District Court,
Fargo, North Dakota shall be dismissed with prejudice in a form
satisfactory to CSFB.
9. RDO Construction Equipment Co. ("RDOCEC") shall execute
simultaneously herewith the new Dealership Agreement and Exhibit
7 as mutually agreed upon between RDOCEC and Deere for each of
RDOCEC" three areas of responsibility.
10. The RDO Parties shall execute the Release and Covenant Not to
Xxx, attached as Exhibit 1 hereto, simultaneously herewith,
pertaining generally to the market potential limitation as
mutually agreed upon between the RDO Parties and Deere.
11. The RDO Parties shall effectuate the relief sought by Xxxx Deere
Ag in the pending arbitration pertaining generally to an alleged
"locations clause" violation in or around Salinas, California
within 120 days hereof or sign a confession of judgment in that
arbitration satisfactory to Xxxx Deere Ag.
12. Xxxxxx X. Xxxxxx shall issue a press release pertaining to
certain personnel matters within RDO as required by Deere.
13. Deleted
14. Each party, at its own expense, shall return, delete, or destroy
all documents, copies of documents, and summaries and indices
thereof (including electronic) produced in discovery in this
matter within 10 business days of a request from the other party
specifying whether and which documents are to be returned,
deleted, and/or destroyed.
15. Any dispute between the Deere Parties and the RDO Parties arising
under this Agreement and/or side letter agreement shall be
resolved pursuant to the terms of Exhibit Five (5) of the three
Dealership Agreements executed by RDOCEC simultaneously with this
Agreement.
16. The parties represent that all necessary corporate action has
been taken to authorize each of them to execute this Agreement
and has consulted with legal counsel before executing this
Agreement and the other agreements executed simultaneously
herewith.
17. The substantive law of the State of Illinois shall govern this
Agreement without regard to conflict of law rules.
18. Each party further represents and warrants that it has neither
relied upon nor been induced by any representation, statement, or
disclosure of the other party, but has relied upon its own
knowledge and judgment in entering into the Agreement.
19. This Agreement cannot be modified, nor any party's rights
hereunder waived, except in writing, and no waiver of any
provision hereof shall preclude enforcement of any other
provision hereof, or subsequent enforcement of the provision
waived. This Agreement cannot be assigned without the prior
written consent of the parties, which consent may be withheld
with or without cause
IN WITNESS THEREOF, the parties have executed this Agreement on the
first day written above.
RDO EQUIPMENT CO. XXXX DEERE CONSTRUCTION EQUIPMENT COMPANY
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxxx Xxxxxxx
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Its CEO Its Manager, Finance Operations
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RDO CONSTRUCTION EQUIPMENT CO. NORTRAX, INC.
By /s/ Xxxxxx X. Xxxxxx By Xxxx Xxxx
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Its CEO Its VP/CFO
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XXXXXX X. XXXXXX, AN INDIVIDUAL
/s/ Xxxxxx X. Xxxxxx
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