MUTUAL RELEASE AGREEMENT RELATED TO EBITDA AND EARNOUT PROVISIONS
Exhibit 10.6
MUTUAL RELEASE AGREEMENT RELATED TO
EBITDA AND EARNOUT PROVISIONS
EBITDA AND EARNOUT PROVISIONS
THIS MUTUAL RELEASE AGREEMENT (the “Agreement”) is hereby entered into by and between
Express-1 Expedited Solutions, Inc., a Delaware corporation (the “Company”); Concert Group
Logistics, Inc., a Delaware corporation (“Buyer”); Concert Group Logistics, LLC, an Illinois
Limited Liability Company (“Seller”); Xxxxxx Xxxx, a resident of Illinois (“Selling Parties
Representative”); Xxxxx Post, a resident of Illinois (“Post”); Xxxxxx Xxxxxxxxx, a resident of
Illinois (“Xxxxxxxxx”); Xxxx Xxxxxxxx, a resident of Illinois (“Xxxxxxxx”) (Selling Parties
Representative, Post, Xxxxxxxxx, and Xxxxxxxx are referred to herein as the “Principals”); Xxx Para
Investments, LLC, a Delaware limited liability company (“Para Investments”); the Xxxxxx X. Post
Trust dated October 12, 2006 (“Post Trust”); and the Xxxx X. Xxxxxxxx Revocable Trust dated January
9, 2003 (“Xxxxxxxx Trust”) (Xxxxxxxxx, Para Investments, Post Trust and Xxxxxxxx Trust are referred
to herein as the “Members”), hereinafter the “Parties”.
On January 31, 2008, the Parties entered into an asset purchase agreement (the “APA”). In
addition to certain consideration paid by Buyer to Seller at the closing of the transactions set
forth in the APA, the APA sets forth a mechanism for a possible earn-out payment to be made by
Buyer to Seller with respect to the fiscal year ended 12/31/08 (“FY 2008”) and with respect to the
fiscal year ended 12/31/09 (“FY 2009”). Certain disputes have arisen with respect to the
calculation of the amount of the FY 2008 earn-out payment. The Parties have agreed that, in
settlement of all earn-out obligations of the Company and the Buyer to the Seller, and all other
obligations of the Company and the Buyer to the Seller, the Principals and/or the Members under the
APA, a sum in the amount of One Million One Hundred Thousand Dollars ($1,100,000) shall be paid to
the Seller.
The Members are the sole members of Seller. Selling Parties Representative is a principal of
Para Investments. Post is the settler of the Post Trust. Xxxxxxxx is the settler of the Xxxxxxxx
Trust.
For and in consideration of the Company’s payment of the sum of One Million One Hundred
Thousand Dollars ($1,100,000) to Seller, and other good and valuable consideration received from
and on behalf of the Parties to each other, the receipt and sufficiency of which consideration is
hereby acknowledged, the Seller, the Principals, and the Members (collectively the “CGL Releasing
Parties”) collectively do hereby globally, immediately and forever release, remise, acquit, satisfy
and discharge the Company and the Buyer, and each of their affiliates, subsidiaries, parents,
officers, directors, attorneys, agents, employees, successors, and assigns (collectively the
“Company Released Parties”), from any and all manner of claims, benefits, rights, sums of money,
causes of action, suits, debts, obligations, losses, expenses, liabilities, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, of
whatever nature or kind, known or unknown, which any of the Releasing Parties ever had, now has, or
ever may have, or which any affiliate, subsidiary, parent, officer, director, attorney, agent,
employee,
manager, personal representative, heir, successor or assign of any of the Releasing Parties
ever had, now has, or ever may have, against the Released Parties, related to or arising out of the
earn-out provisions of the APA and the Company EBIDTA and the financial statements providing the
basis thereof.
For and in consideration of the CGL Releasing Parties’ agreements hereunder, and other good
and valuable consideration received from and on behalf of the Parties to each other, the receipt
and sufficiency of which consideration is hereby acknowledged, the Company Released Parties
collectively do hereby globally, immediately and forever release, remise, acquit, satisfy and
discharge the CGL Releasing Parties from any and all manner of claims, benefits, rights, sums of
money, causes of action, suits, debts, obligations, losses, expenses, liabilities, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in
equity, of whatever nature or kind, known or unknown, which any of the Company Released Parties
ever had, now has, or ever may have, or which any affiliate, subsidiary, parent, officer, director,
attorney, agent, employee, manager, personal representative, heir, successor or assign of any of
the Company Released Parties ever had, now has, or ever may have, against the CGL Releasing Parties
related to or arising out of the earn-out provisions of the APA and the Company EBITDA and the
financial statements providing the basis thereof.
The Parties understand, acknowledge and agree that the execution of this Agreement constitutes
a compromise of all disputed claims involving legal and factual questions and that such settlement
is not to be construed as an admission of liability on the part of the Parties and/or any other
parties and entities by whom liability is expressly denied.
The Parties have read this Agreement and have conferred with their attorneys and fully
understand the purpose, tenor and effect of this Agreement.
Any proceeding arising out of or relating to this Agreement may be brought in the courts of
the State of Michigan, County of Berrien, or, if it has or can acquire jurisdiction, in the United
States District Court for the Western District of Michigan, and each of the Parties irrevocably
submits to the exclusive jurisdiction of each such court in any such proceeding, waives any
objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims
in respect of the proceeding shall be heard and determined only in any such court and agrees not to
bring any proceeding arising out of or relating to this Agreement in any other court. The Parties
agree that any of them may file a copy of this paragraph with any court as written evidence of the
knowing, voluntary and bargained agreement between the Parties irrevocably to waive any objections
to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of
this section may be served on any Party anywhere in the world.
Each Party acknowledges and agrees that the other Parties would be irreparably damaged if any
of the provisions of this Agreement are not performed in accordance with their specific terms and
that any breach of this Agreement by a Party could not be adequately
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compensated in all cases by monetary damages alone. Accordingly, in addition to any other
right or remedy to which a Party may be entitled, at law or in equity, said Party shall be entitled
to enforce any provision of this Agreement by a decree of specific performance and to temporary,
preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of
the provisions of this Agreement, without posting any bond or other undertaking.
This Agreement supersedes all prior agreements, whether written or oral, between the Parties
with respect to its subject matter and constitutes a complete and exclusive statement of the terms
of the agreement between the Parties with respect to its subject matter. This Agreement may not be
amended, supplemented, or otherwise modified except by a written agreement executed by the Party to
be charged with the amendment.
This Agreement will be governed by and construed under the laws of the State of Michigan
without regard to conflicts-of-laws principles that would require the application of any other law.
This Agreement may be executed in one or more counterparts, each of which will be deemed to be
an original copy of this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement. The exchange of copies of this Agreement and of signature
pages by facsimile transmission shall constitute effective execution and delivery of this Agreement
as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of
the Parties transmitted by facsimile shall be deemed to be their original signatures for all
purposes.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| EXPRESS-1 EXPEDITED SOLUTIONS, INC. | ||
| By: /s/Xxxx Xxxxxxxxx | ||
| Name: Xxxx Xxxxxxxxx Its: Chief Financial Officer |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxx Xxxxxxxxx,
the Chief Financial Officer of Express-1 Expedited Solutions, Inc., who is personally known to me.
the Chief Financial Officer of Express-1 Expedited Solutions, Inc., who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| CONCERT GROUP LOGISTICS, INC. | ||
| By: /s/ Xxxx Xxxxxxxxx | ||
| Name: Xxxx Xxxxxxxxx Its: Secretary |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxx Xxxxxxxxx,
the Secretary of Concert Group Logistics, Inc., who is personally known to me.
the Secretary of Concert Group Logistics, Inc., who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| CONCERT GROUP LOGISTICS, LLC | ||
| By: /s/ Xxxxxx Xxxx | ||
| Name: Xxxxxx Xxxx Its: Manager |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxxxx Xxxx,
the Manager of Concert Group Logistics, LLC, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| By /s/ Xxxxxx Xxxx | ||
| Xxxxxx Xxxx |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxxxx Xxxx, an
individual, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| By: /s/ Xxxxx Post | ||
| Xxxxx Post |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxxx Post, an
individual, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| By: /s/ Xxxxxx Xxxxxxxxx | ||
| Xxxxxx Xxxxxxxxx |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxxxx
Xxxxxxxxx, an individual, who is personally known to me.
Xxxxxxxxx, an individual, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| By: /s/ Xxxx Xxxxxxxx | ||
| Xxxx Xxxxxxxx |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxx Xxxxxxxx,
an individual, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| XXX PARA INVESTMENTS, LLC | ||
| By: /s/ Xxxxxx Xxxx | ||
| Name: Xxxxxx Xxxx Its: President |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxxxx Xxxx,
the President of Xxx Para Investments, LLC, who is personally known to me.
the President of Xxx Para Investments, LLC, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| XXXXXX X. POST TRUST | ||
| By: /s/ Xxxxxx Xxxx | ||
| Name: Xxxxxx X. Post Its: Trustee |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxxxx X. Post,
the Trustee of the Xxxxxx X. Post Trust, who is personally known to me.
the Trustee of the Xxxxxx X. Post Trust, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this February 27, 2009.
| XXXX X. XXXXXXXX REVOCABLE TRUST | ||
| By: /s/ Xxxx Xxxxxxxx | ||
| Name: Xxxx X. Xxxxxxxx Its: Trustee |
The foregoing instrument was acknowledged before me this February 27, 2009, by Xxxx X.
Xxxxxxxx, the Trustee of the Xxxx X. Xxxxxxxx Revocable Trust, who is personally known to me.
Xxxxxxxx, the Trustee of the Xxxx X. Xxxxxxxx Revocable Trust, who is personally known to me.
| Notary Name: | ||
| Notary Public, State of: | ||
| My Commission Number: | ||
| My Commission Expires: |
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