Exhibit 10.1
AGREEMENT
This Agreement is made this 30th day of January, 1997, by and between THT,
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Inc., a Delaware corporation,; AJH Corp., a Delaware corporation; Jackburn Mfg.,
Inc., a Pennsylvania corporation, PH II, Inc., a Delaware corporation, THT
Holdings, Inc., a Delaware corporation and Jackburn Corporation (formerly
Jackburn Acquisition Corporation), a Delaware corporation, on the one hand, and
X. X. Xxxxxxx, Xxxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xx., Xxxxx
X. Xxxxx, III, Xxxxxx X. Xxxxx, Xxxx X. Xxxxx and Xxxxxx X. Xxxxxx
(collectively, the "Selling Shareholders"), and Xxxxxx X. Xxxxxx (as
"Shareholders' Representative"), on the other hand.
W I T N E S S E T H :
WHEREAS, on September 28, 1990, Jackburn Acquisition Corporation (now known
as "Jackburn Corporation") and THT, Inc. ("THT") entered into a Stock Purchase
Agreement, which is incorporated by reference, with the shareholders of Jackburn
Mfg., Inc. ("JMI"), pursuant to which Jackburn Corporation bought all of the
shares of JMI;
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WHEREAS, Jackburn, THT and THT Holdings, Inc. started suit against the
Selling Shareholders in the United States District Court for the Western
District of Pennsylvania at Civil Action No. 91-1090 (the "THT Action");
WHEREAS, PH II, Inc. ("PH II") had made a loan to THT Holdings, Inc. that
enabled Jackburn to consummate the purchase of JMI, which was evidenced by a
Note (the "PH II Note");
WHEREAS, THT Holdings, Inc. did not make the required payments under the PH
II Note;
WHEREAS, PH II instituted suit against the Selling Shareholders in the
United States District Court for the Western District of Pennsylvania at Civil
Action No. 91-249E (the "PH II Action");
WHEREAS, on May 15, 1992, the parties entered into a Settlement Agreement, a
copy of which is attached to this Agreement, as a result of which the THT action
and the PH II Action were dismissed and the Stock Purchase Agreement was
modified in certain respects;
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WHEREAS, X. X. Xxxxxxx was the Shareholder Representative under Article 3.6
of the Stock Purchase Agreement and Xxxxxx X. Xxxxxx became the Shareholder
Representative under Paragraph 12 of the Settlement Agreement and continues in
that capacity as of the date of this Agreement;
WHEREAS, Paragraph 10 of the Settlement Agreement provided for the Selling
Shareholders to receive an annual earnout of Excess Cash Flow of JMI (as defined
in Paragraph 11 of the Settlement Agreement) in each of the six fiscal years
commencing October 1, 1992 and ending September 30, 1998; and
WHEREAS, as a result of certain recent events, and in order to avoid further
litigation, the parties desire to terminate their relationship on the terms set
forth below.
NOW, THEREFORE, each of them intending to be legally bound by this
Agreement, the parties agree as follows:
1. THT or JMI will make a lump sum payment of $900,000 (Nine Hundred
Thousand Dollars) to the Shareholders' Representative within 10 days of the
execution of this Agreement. This sum represents satisfaction in full on the
Mortgage Note in the amount
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of $604,000 (Six Hundred Four Thousand Dollars). The balance represents a sum
being paid in lieu of any continuing obligation to make payments of Excess Cash
Flow for fiscal years ending September 30, 1997 and September 30, 1998.
2. In addition to and concurrent with the lump sum payment referred to in
Paragraph 1 above, THT or JMI will remit a payment representing any interest due
on the Mortgage Note from January 1, 1997 until the date of payment of the lump
sum.
3. Upon the payments referred to in Paragraphs 1 and 2 above, the Selling
Shareholders will not be entitled to receive any further payments on account of
the Stock Purchase Agreement, the Settlement Agreement, or this Agreement
including but not limited to any payments of Excess Cash Flow for fiscal years
ending September 30, 1997 and September 30, 1998 or any payments pursuant to the
Mortgage Note that is attached as Exhibit "C" to the Stock Purchase Agreement.
4. Xxxxxx X. Xxxxxx shall act as the Shareholders' Representative for all
matters relating to this Agreement. If Xx. Xxxxxx is hereafter unable or
unwilling to so serve, a successor Shareholders' Representative who is a
shareholder in the law firm of Quinn, Buseck, Xxxxxxxx, Xxxxxx & Xxxxx, Inc.,
shall be appointed by the executive committee of such law firm.
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5. To the extent this Agreement modifies the Stock Purchase Agreement dated
September 28, 1990, this Agreement shall constitute an amendment pursuant to
Article 6.10 of the Stock Purchase Agreement. In the event of a conflict
between this Agreement and the Stock Purchase Agreement, the provisions of this
Agreement shall govern.
6. To the extent this Agreement modifies the Settlement Agreement dated May
15, 1992, this Agreement shall constitute an amendment pursuant to Paragraph 30
of the Settlement Agreement. In the event of a conflict between this Agreement
and the Settlement Agreement, the provisions of this Agreement shall govern.
7. The parties do not intend this Agreement to affect in any way any
restrictive covenants entered into by former JMI employees.
8. In the event that the cooperation of the Selling Shareholders is
required to carry out the terms and conditions of this Agreement, they agree to
all reasonable requests of THT, JMI, PH II, AJH Corp., THT Holdings, Inc. and/or
Jackburn Corporation. Without limiting the generality of the foregoing and by
way of example only, the Selling Shareholders agree that, upon receipt of the
payments referred to in Paragraphs 1 and 2 above, they will promptly sign any
papers necessary to release the lien of the Mortgage Note.
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9. The Selling Shareholders and Shareholders' Representative, for
themselves and each of their respective heirs, successors, representatives and
assigns, hereby release and discharge THT, JMI, PH II, AJH Corp., THT Holdings,
Inc. and Jackburn Corporation, and each of their respective past and present
shareholders, directors, officers, employees, agents, attorneys, accountants,
parents, subsidiaries, affiliates, predecessors, successors, representatives and
assigns, from any and all claims, debts, liens, demands, liabilities,
obligations, promises, agreements, costs, expenses, damages, and causes of
action of any nature whatsoever, known or unknown, suspected or unsuspected,
that each of them may have had, now have, or may in the future have against any
of the others, for, upon or by reason of any cause existing before the date of
this Agreement.
10. Except as expressly reserved in Paragraph 11, THT, JMI, PH II, AJH
Corp., THT Holdings, Inc. and Jackburn Corporation, for themselves and their
respective past and present shareholders, directors, officers, employees,
agents, attorneys, accountants, parents, subsidiaries, affiliates, predecessors,
successors, representatives and assigns, hereby release and discharge the
Selling Shareholders and Shareholders' Representative, and each of their
respective heirs, successors, employees, agents, attorneys,
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accountants, representatives, and assigns, from any and all claims, debts,
liens, demands, liabilities, obligations, promises, agreements, costs, expenses,
damages, and causes of action of any nature whatsoever, known or unknown,
suspected or unsuspected, that each of them may have had, now have, or may in
the future have against any of the others, for, upon or by reason of any cause
existing before the date of this Settlement Agreement.
11. It is specifically understood and agreed that by entering into this
Agreement that THT, JMI, PH II, AJH Corp., THT Holdings, Inc. and Jackburn
Corporation and any other person or entity within the scope of Paragraph 10
above do not intend to and do not release Xxxx Xxxxxx and Brown, Schwab,
Xxxxxxxxx & Co. from any liability he or they may otherwise have to THT, JMI, PH
II, AJH Corp., THT Holdings, Inc. and Jackburn Corporation or any person or
entity within the scope of Paragraph 10 above, as accountants for THT and its
subsidiaries for fiscal years ending September 30, 1991 through September 30,
1996.
12. Each of the Selling Shareholders and the Shareholders' Representative
represents that he or she is entering into this Agreement freely and
voluntarily, and has relied upon the advice of persons of his or her own
choosing concerning the legal and income tax consequences of this Agreement or,
alternatively, has deemed it
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unnecessary to seek such advice prior to executing this Agreement. Each Selling
Shareholder and Shareholders' Representative represents that he or she has read
the terms of the Agreement and that the terms of the Agreement are fully
understood and voluntarily accepted. Each Selling Shareholder represents and
warrants that the person executing this Agreement on his or her behalf is
authorized to sign this Agreement and to bind him or her to its terms.
13. No covenants, agreements, representations or warranties of any kind
have been made by any party hereto, except as expressly set forth herein. This
Agreement constitutes the entire agreement among the parties relating to the
subject matter hereof, and all prior discussions and negotiations with respect
to the subject matter hereof have been and are merged and integrated into, and
superseded by, this Agreement.
14. This Agreement may not be altered, amended, modified, terminated or
otherwise changed in any respect whatsoever except by a writing signed by all
parties or their heirs and successors, who executed this Agreement.
15. Except as specifically set forth in Paragraph 11 above, this Agreement
shall be binding upon and inure to the benefit of THT, JMI, PH II, AJH Corp.,
THT Holdings, Inc. and Jackburn
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Corporation and the Selling Shareholders and Shareholders' Representative and
their respective agents, representatives, attorneys, accountants, employees,
predecessors, successors, heirs, assigns, directors, officers, shareholders,
executors, administrators, and any other persons who may in any fashion claim an
interest in the subject matter hereof through any of the parties.
16. This Agreement shall be construed and enforced under the substantive
law of the Commonwealth of Pennsylvania.
17. This Agreement may be signed in counterpart copies, each of which shall
be deemed to be an original document, and all of which shall together be deemed
to constitute a single document.
IN WITNESS WHEREOF, the parties have executed and sealed this Agreement as
of the first date above written.
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ATTEST: THT INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/Xxxxxxxxx X. Xxxxxxxx
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Its: President
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ATTEST: JACKBURN MFG., INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Its: President
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ATTEST: PH II, INC.
/s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
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Its: President
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ATTEST: AJH CORP.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Its: President
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ATTEST: THT HOLDINGS, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Its: President
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ATTEST: JACKBURN CORPORATION
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Its: President
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WITNESS: X. X. XXXXXXX/1/
/s/ /s/ X. X. Xxxxxxx
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WITNESS: XXXXXXXX X. XXXXXXX/1/
/s/ /s/ Xxxxxxxx X. Xxxxxxx
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WITNESS: XXXXX X. XXXXX/2/
/s/ /s/ Xxxxx X. Xxxxx
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WITNESS: XXXXX X. XXXXX, XX./3/
/s/ /s/ Xxxxx X. Xxxxx, Xx.
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WITNESS: XXXXX X. XXXXX, III/4/
/s/ /s/ Xxxxx X. Xxxxx, III
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WITNESS: XXXXXX X. XXXXX/4/
/s/ /s/ Xxxxxx X. Xxxxx
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WITNESS: XXXXXX X. XXXXXX/5/
/s/ /s/ Xxxxxx X. Xxxxxx
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WITNESS: XXXX X. XXXXX/4/
/s/ /s/ Xxxx X. Xxxxx
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WITNESS: XXXXXX X. XXXXXX,
SHAREHOLDERS' REPRESENTATIVE
/s/ /s/ Xxxxxx X. Xxxxxx
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1 As former holder, prior to the execution of the September 28, 1990 Stock
Purchase Agreement, of 50 JMI shares of common stock and joint holder of
100 JMI shares of such stock.
2 As former holder, prior to the execution of the September 28, 1990 Stock
Purchase Agreement, of 250 share of common stock of AJH Corporation ("AJH");
as legatee of a portion of the proceeds from the sale of AJH shares formerly
held by the Estate of Xxxxxxx Xxxxx; as co-executor of the Estate of Xxxxxxx
Xxxxx; as co-trustee of a trust of a portion of the proceeds from the sale
of such shares formerly held by such estate, to be established pursuant to
the Last Will and Testament, as amended, of Xxxxxxx Xxxxx; as contingent
beneficiary of the income from such trust of the proceeds of such sale; and
as principal and income beneficiary pursuant to the Irrevocable Trust
agreement, dated September 28, 1990, establishing the Xxxxxx Trust.
3 Also known as Xxxxx Xxxx Xxxxx, Jr. As Co-executor of the Estate of Xxxxxxx
Xxxxx; as income and principal beneficiary of the trust of a portion of the
proceeds from the sale of the AJH shares formerly held, prior to the
execution of the September 28, 1990 Stock Purchase Agreement, by the Estate
of Xxxxxxx Xxxxx; and as co-trustee pursuant to the Irrevocable Trust
agreement, dated September 28, 1990, establishing the Xxxxxx Trust.
4 As former holder, prior to the execution of the September 28, 1990 Stock
Purchase Agreement, of 82 AJH shares of common stock, and as contingent
principal beneficiary of the trust of
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a portion of the proceeds from the sale of the AJH shares formerly held by
the Estate of Xxxxxxx Xxxxx.
5 As co-trustee of the trust of a portion of the proceeds from the sale of AJH
shares formerly held by the Estate of Xxxxxxx Xxxxx, to be established
pursuant to her Last Will and Testament, and as co-trustee pursuant to the
Irrevocable Trust agreement, dated September 28, 1990, establishing the
Xxxxxx Trust.
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