PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. SUCH PORTIONS ARE DESIGNATED [REDACTED].
EXHIBIT 10.20
RELEASE AND SETTLEMENT AGREEMENT
This Release and Settlement Agreement (the "Agreement") is entered into
this 27th day of April 2004 between Xxxxx X. Xxxxxxxx ("Xxxxxxxx") and Xxxxxxxxx
International, Inc. ("International").
WHEREAS by resolutions dated June 19, 2003, and January 20, 2004, the
Board of Directors of International formed and authorized a Special Committee
(the "SC") to investigate, among other things, allegations regarding various
related-party transactions and payments, including various "non-competition"
payments;
WHEREAS Xxxxxxxx was a recipient of the "non-competition" payments;
WHEREAS, in early November 2003, Xxxxxxxx volunteered to repay a portion
of the "non-competition" payments;
WHEREAS during the course of its investigation, the Special Committee
discovered, among other things, another category of related-party payments,
i.e., those made under the Xxxxxxxxx Digital Management Incentive Plan;
WHEREAS Xxxxxxxx was a recipient of payments under the Xxxxxxxxx Digital
Management Incentive Plan;
WHEREAS on December 10, 2003, the action Cardinal Value Equity Partners,
L.P. v. Black, et al., C.A. No. 105-N (Del. Ch., filed Dec. 10, 2003) (the
"Cardinal Action") was brought on behalf of International, naming Xxxxxxxx,
among other defendants, challenging, among other things, the "non-competition"
payments;
WHEREAS on January 16, 2004, the SC filed suit against, among others,
Xxxxxx X. Xxxxx and F. Xxxxx Xxxxxx in the United States District Court for the
Southern District of New York, which case was subsequently dismissed and refiled
in the United States District Court for the Northern District of Illinois,
Eastern Division, Case No. 04C 0698 (the "Illinois Action");
WHEREAS in or about April 2004, the SC began discussions with Xxxxxxxx
regarding resolving International's claims against Xxxxxxxx;
WHEREAS, Xxxxxxxx wishes to settle and finally resolve all actual or
potential claims arising out of or relating to the matters that have been or may
be asserted against him in the Cardinal Action and the Illinois Action;
WHEREAS, Xxxxxxxx has denied that he has liability to any of the
plaintiffs in the Cardinal Action and/or the Illinois Action and has not
admitted any of the allegations of the complaints filed in those actions;
WHEREAS, Xxxxxxxx has agreed to enter into the Agreement to resolve any
potential liability in connection with the Cardinal Action and the Illinois
Action, and to reduce further expense, inconvenience, and the distraction of
burdensome and protracted litigation;
WHEREAS, the SC believes that this settlement with Xxxxxxxx (the "Xxxxxxxx
Settlement") is fair, reasonable and adequate and in the best interests of the
shareholders of International; and
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, subject to the
approval of the Court as more fully described herein, as follows:
1. Settlement Amount-- "Non-Competition" Payments and Xxxxxxxxx Digital
Management Incentive Plan Payments in Full-with Interest. Xxxxxxxx agrees to
pay to International, with interest, the "non-competition" payments he received,
as identified in paragraph 3 of the Complaint in the Illinois Action. The
"non-competition" payments (not including interest) for Xxxxxxxx total
$2,180,929. Xxxxxxxx also agrees to pay to International, with interest, the
Digital incentive compensation payments he received: he received $50,0000 on
August 11, 2000 and $100,000 on January 16, 2001, for a total of $150,000. The
applicable rate of interest is the U.S. federal rate at the time Xxxxxxxx
received each payment, compounded annually. The applicable rates are: (i) 6.33%
on the August 2000 payment (the first of the two Xxxxxxxxx Digital Management
Incentive Plan payments); (ii) 6.01% on the November 2000 payments (the CanWest
payment and the first of the three U.S. Community newspaper payments); (iii)
5.61% on the January 2001 payment (the second of two Xxxxxxxxx Digital
Management Incentive Plan payments); (iv) 5.07% on the February 2001 payment
(the second of the three U.S. Community newspaper payments) (v) 4.94% on the
April 2001 payment (the last of the three U.S. Community newspaper payments;
(vi) 4.07% on the July 2001 payment (the first of the two Osprey payments; and
(vii) 2.73% on the November 2001 payment (the second of the two Osprey
payments). The total amount to be paid by Xxxxxxxx including interest (as of
April 26, 2004) for the "non-competition" payments and the Xxxxxxxxx Digital
Management Incentive Plan payments is $2,460,181.43. Xxxxxxxx has paid $350,000,
and the balance to be paid as of April 26, 2004 including interest is
$2,110,181.43 (the "Settlement Amount"). Xxxxxxxx will pay the Settlement Amount
into escrow by exercising stock options as provided in paragraph 2 below.
2. Resignation and Exercise of Stock Options. Xxxxxxxx hereby resigns as
an officer of International as of April 27, 2004. Xxxxxxxx hereby confirms that
he is aware and that he has been advised that the United States securities laws
prohibit any person who has material non-public information about a company
from purchasing or selling securities of such company. Xxxxxxxx agrees that he
will not purchase or offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of any such shares of common
stock of the Company, or any options or warrants to purchase any such shares of
stock of the Company, or any securities convertible into, exchangeable for or
that represent the right to receive such shares of common stock of the Company
while in possession of such information. Accordingly, International agrees to
allow Xxxxxxxx to exercise his vested stock options immediately upon his
resignation. Xxxxxxxx may exercise his vested options immediately upon his
resignation. If he elects to sell the resulting shares, he shall deposit all
proceeds of any such sale of stock resulting from the exercise of his vested
stock options into the Escrow Account. Xxxxxxxx agrees that a portion of the
proceeds equal to the Settlement Amount (plus all interest accrued thereon)
shall be released to International in satisfaction of Xxxxxxxx'x obligations as
set forth in paragraph 1 of this Agreement. Upon satisfaction of such
obligations, International agrees that the remainder of those proceeds, if any,
shall revert to Xxxxxxxx. For purposes of this Agreement, "Escrow
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Account" shall mean the account described in the Escrow Agreement, substantially
in the form attached hereto as Exhibit A, providing for the deposit of all
amounts due from Xxxxxxxx under the terms of this Agreement until Final
Approval. Upon Final Approval, the amounts will be wired to an account
designated by International, for International's unrestricted use. "Final
Approval" means the point at which the Final Order approving the Xxxxxxxx
Settlement becomes final and unappealable, whether by the passage of time,
affirmance on appeal or otherwise.
3. Cooperation. Xxxxxxxx agrees to cooperate fully and actively with
International and in particular with the work of the SC as of the signing of
this Agreement. Xxxxxxxx agrees to make himself available to respond to
inquiries and provide information as reasonably requested by the SC, and agrees
to provide full and complete information as requested by the SC and as legally
permitted under applicable law. Xxxxxxxx and International further agree that
Xxxxxxxx will continue as a consultant to International pursuant to the terms of
a separate Consulting Agreement, in the form attached hereto as Exhibit B (the
"Consulting Agreement").
4. Release and Settlement. Upon Final Approval, and payment in full of the
Settlement Amount, International and its agents, advisors, representatives,
affiliates, subsidiaries, divisions, officers, current and former directors,
shareholders, employees, attorneys, predecessors, successors and assigns do
hereby fully, finally and forever release Xxxxxxxx and any of his respective
agents, heirs, successors, assigns, survivors and executors from any and all
rights, interests, obligations, debts, dues, sums of money, accounts,
reckonings, damages, claims, actions, allegations, causes of action,
counterclaims or demands whatsoever, whether known or unknown, in law or in
equity, that have been or that could be asserted from the beginning of time
through the date hereof against Xxxxxxxx (the "Settled Claims") and Xxxxxxxx and
any of his respective agents, heirs, successors, assigns, survivors and
executors do hereby fully, finally and forever release International and its
agents, advisors, representatives, affiliates, subsidiaries, divisions,
officers, current and former directors, shareholders, employees, attorneys,
predecessors, successors and assigns from any and all rights, interests,
obligations, debts, dues, sums of money, accounts, reckonings, damages, claims,
actions, allegations, causes of action, counterclaims or demands whatsoever,
whether known or unknown, in law or in equity, that have been or that could be
asserted from the beginning of time through the date hereof against them. The
releases provided under this paragraph do not relate to any pending or future
securities class action suits and do not affect the rights of contribution and
indemnification the parties to this Agreement may have against each other in any
securities class action suits. The releases also do not release Xxxxxxxx or
International from their respective obligations under this Agreement or the
Consulting Agreement.
5. Indemnification for Legal Expenses. International will advance monies
in accordance with Article 4.6 of the International's by-laws for reasonable
legal costs and expenses incurred by Xxxxxxxx in responding to the investigation
of the SC, regulatory investigations, and in defending litigation arising
therefrom. International also will reimburse Xxxxxxxx on the same basis for
reasonable legal costs and expenses incurred to date. Xxxxxxxx agrees to provide
International with details of legal costs and expenses incurred to date for
which reimbursement will be sought.
3
6. Press Release. Any press release announcing this Agreement will be made
available to Xxxxxxxx for review and comment, but final approval on the contents
of the release will remain solely with International.
7. Submission and Application to the Court. Xxxxxxxx acknowledges that
because he is a defendant in the Cardinal Action, this Agreement can only be
effective if approved by the Court. Xxxxxxxx further acknowledges that this
Agreement is one of a number of such agreements that may be entered into between
the SC, on behalf of International, and others (the "Settlements") and that the
SC, on International's behalf, intends to seek Court approval of the Settlements
as a single group to the extent necessary and appropriate. Therefore, as soon as
practicable after the execution of this Agreement and any other Settlements, and
the completion of the SC's investigation, the SC shall apply to the Delaware
Court of Chancery for a scheduling order (the "Scheduling Order") that shall
provide that:
a. a settlement hearing (the "Settlement Hearing") be held to
determine whether the Court should: (i) approve the
Settlements pursuant to the Chancery Court Rule 23.1 as fair,
reasonable, and adequate and in the best interests of
International's stockholders; and (ii) enter an Order and
Final Judgment dismissing Xxxxxxxx from the Cardinal Action
with prejudice, each party to bear its own costs and release
and enjoin prosecution against Xxxxxxxx of any and all Settled
Claims; and (iii) hear other such matters as the Court may
deem necessary and appropriate; and
b. a copy of the Notice of Hearing and Proposed Settlement of
Certain Defendants In Cardinal Value Equity Partners, L.P. v.
Black (the "Notice") shall be sent to all stockholders of
record of International as of the date of the Scheduling
Order, and further provide that the distribution of the Notice
substantially in the manner set forth in the Scheduling Order
constitutes the best notice practicable under the
circumstances, meets the requirements of applicable law and
due process, is due and sufficient notice of all matters
relating to the Settlements and fully satisfies the
requirements of due process and of Rule 23.1 of the Chancery
Court Rules.
8. Notices. All costs incurred in identifying and notifying
International's stockholders of the Settlements, including the printing and the
copying of the Notice, as set forth in the Scheduling Order, will be paid by
International.
9. Order and Final Judgment. If the Xxxxxxxx Settlement (including any
modification thereto made with the consent of International and Xxxxxxxx as
provided for herein) is approved by the Court, International and Xxxxxxxx shall
promptly request the Court to enter an Order and Final Judgment that will
automatically and without further action, among other things:
a. approve the Xxxxxxxx Settlement, adjudge the terms thereof to
be fair, reasonable, adequate and in the best interests of
International's stockholders, and direct consummation of the
Xxxxxxxx Settlement in accordance with the terms and
conditions of the Agreement;
4
b. determine that the requirements of Rule 23.1 of the Chancery
Court Rules and due process have been satisfied in connection
with the Notice to International's stockholders; and
c. dismiss Xxxxxxxx from the Cardinal Action with prejudice,
extinguish, discharge, and release, any and all Settled Claims
as against Xxxxxxxx, said dismissal subject only to compliance
by International and Xxxxxxxx with the terms of this Agreement
and any Order of the Court concerning this Agreement, and
permanently enjoin International from asserting, commencing,
prosecuting or continuing any of the Settled Claims.
10. Right to Withdraw from the Xxxxxxxx Settlement. The parties hereto
shall have the right to withdraw from and terminate this Agreement as follows:
a. International and Xxxxxxxx shall each have the option to
withdraw from and terminate the Agreement (the "Termination
Option") in the event that (i) either the Scheduling Order or
Order and Final Judgment referred to above are not entered
substantially in the customary form for derivative settlements
in Delaware, or in some other form acceptable to International
and Xxxxxxxx, (ii) the Xxxxxxxx Settlement is not approved or
is materially modified by the Court or upon appeal, (iii) any
of the conditions of the Xxxxxxxx Settlement are not
fulfilled, including the SC's determination, in its sole
discretion, that Xxxxxxxx has failed to fulfill his
cooperation obligations as described in paragraph 3, above, or
(iv) application for the Scheduling Order shall not have been
made on or before October 31, 2004 (each of which shall
constitute a "Termination Event").
b. In order to exercise a Termination Option, the terminating
party must provide, within twelve business days of the
Termination Event giving rise to such Termination Option,
written notice of such withdrawal and the grounds therefor to
all signatories to this Agreement.
c. If a party exercises a Termination Option, the settlement
proposed herein shall be of no further force or effect, and
this Agreement and all negotiations, proceedings and
statements relating thereto and any amendment thereof shall be
null and void and without prejudice to any party hereto, and
each party shall be restored to his, her or its respective
position as it existed prior to the execution of this
Agreement, except that (i) Xxxxxxxx shall not revert to being
an employee or officer of the Company, and (ii) the Escrow
Agreement shall remain in place, but any funds residing in the
Escrow Account in excess of the Settlement Amount promptly
shall be released to Xxxxxxxx by wire transfer of immediately
available funds to an account designated by Xxxxxxxx. Xxxxxxxx
also agrees that the Statute of Limitations for all of the
Company's causes of actions and potential claims against
Xxxxxxxx is tolled during the period from the Settlement
Agreement's effective date until the effective date of any
termination of the Agreement.
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11. Governing Law; Choice of Forum; Jury Waiver. This Agreement and any
claim related directly or indirectly to this Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof. All disputes arising out of or
relating to this Agreement or its breach shall be resolved in the courts located
within the State of Delaware, New Castle County, and Xxxxxxxx and International
hereby submit exclusively to the jurisdiction and venue of those Delaware
courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE ARISING
OUT OF THIS AGREEMENT.
12. Counterparts. This Agreement may be signed in any number of
counterparts, all of which together shall constitute one and the same
instrument.
13. Severability. If any provision of this Agreement is found to be
unenforceable in whole or in part, it shall be construed or limited in such a
way as to make it enforceable, consistent with the intentions of the parties. If
such construction or limitation is not possible, the unenforceable provision
will be stricken, and the remaining provisions of this Agreement will remain
valid and enforceable.
14. Successors. This Agreement shall apply to Xxxxxxxx, as well as his
heirs, agents, executors, and administrators. The Agreement also shall apply to,
and inure to the benefit of, the predecessors, successors, and assigns of
International and each past, present, or future employee, agent, representative,
officer, partner, owner, or director of International and any division,
subsidiary, parent, or affiliated entity.
15. Entire Agreement. This agreement contains the entire agreement between
Xxxxxxxx and International and supersedes and replaces all prior negotiations or
proposed agreements, whether written or oral. This Agreement may not be changed
or modified except in writing signed by both Xxxxxxxx and International. This
Agreement is made independent of and is entirely separate from the Consulting
Agreement, and the performance, termination or breach of the Consulting
Agreement shall in no way affect the parties' obligations under this Agreement.
16. Knowledge and Understanding. Xxxxxxxx acknowledges that he has read
this Agreement and understands and acknowledges the significance and consequence
of it and executes it voluntarily with full understanding of its consequences.
Agreed to this 27th day of April, 2004 by:
XXXXXXXXX INTERNATIONAL, INC. XXXXX X. XXXXXXXX
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------------- ----------------------------
6
AMENDMENT TO RELEASE AND SETTLEMENT AGREEMENT
THIS AMENDMENT (this "Amendment") is entered into as of May 10,
2004, by and between Xxxxxxxxx International, Inc. ("International") and Xxxxx
X. Xxxxxxxx ("Xxxxxxxx"), and is made with reference to that certain Release and
Settlement Agreement entered into as of April 27, 2004 (the "Original
Agreement"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Original Agreement.
RECITALS
WHEREAS, the parties have identified a numerical error in Section 1
of the Original Agreement, which sets forth the "Settlement Amount";
WHEREAS, the parties desire to correct that numerical error to
comport with their understanding in the Original Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Section 1 of the Original Agreement is deleted in its entirety and replaced
by the following:
1. Settlement Amount -- "Non-Competition" Payments and Xxxxxxxxx Digital
Management Incentive Plan Payments in Full with Interest. Xxxxxxxx agrees to pay
to International, with interest, the "non-competition" payments he received. The
"non-competition" payments (not including interest) for Xxxxxxxx total
$2,170,433. Xxxxxxxx also agrees to pay to International, with interest, the
Digital incentive compensation payments he received: he received $50,000 on
August 11, 2000 and $100,000 on January 16, 2001, for a total of $150,000. The
applicable rate of interest is the U.S. federal rate at the time Xxxxxxxx
received each payment, compounded annually. The applicable rates are: (i) 6.33%
on the August 2000 payment (the first of the two Xxxxxxxxx Digital Management
Incentive Plan payments); (ii) 6.01% on the November 2000 payments (the CanWest
payment and the first of the three U.S. Community newspaper payments); (iii)
5.61% on the January 2001 payment (the second of two Xxxxxxxxx Digital
Management Incentive Plan payments); (iv) 5.07% on the February 2001 payment
(the second of the three U.S. Community newspaper payments); (v) 4.94% on the
April 2001 payment (the last of the three U.S. Community newspaper payments);
(vi) 4,07% on the July 2001 payment (the first of the two Osprey payments); and
(vii) 2.73% on the November 2001 payment (the second of the two Osprey
payments). The total amount to be paid by Xxxxxxxx including interest (as of
April 26, 2004) for the "non-competition" payments and the Xxxxxxxxx Digital
Management Incentive Plan payments is $2,798,424.05. Xxxxxxxx has paid $350,000,
and the balance to be paid as of April 26, 2004 including interest is
$2,448,424.05 (the "Settlement Amount"). Xxxxxxxx agrees to pay, and has paid,
the Settlement Amount into escrow by exercising stock options as provided in
paragraph 2 below.
2. This Amendment may be signed in any number of counterparts, all of which
together shall constitute one and the same instrument.
3. All other provisions of the Original Agreement remain fully in effect.
Agreed to this 10th day of May, 2004 by:
XXXXXXXXX INTERNATIONAL, INC. XXXXX X. XXXXXXXX
By: /s/ Xxxx X. Xxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------------- -----------------------------
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SECOND AMENDMENT TO RELEASE AND SETTLEMENT AGREEMENT
THIS SECOND AMENDMENT (the "Second Amendment") is entered into as of
October 29, 2004, by and between Xxxxxxxxx International, Inc. ("International")
and Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), and is made with reference to that certain
Release and Settlement Agreement entered into as of April 27, 2004 (the
"Original Agreement") and the Amendment to that certain Release and Settlement
Agreement entered into as of May 10, 2004 (the "Amendment"). Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Original Agreement.
RECITALS
WHEREAS, this Agreement is one of a number of such agreements that
may be entered into between the Special Committee (the "SC"), on behalf of
International, and others (the "Settlements") and that the SC, on
International's behalf, intends to seek Court approval of the Settlements as a
single group to the extent necessary and appropriate;
WHEREAS, the parties desire to seek an extension of time for the SC
to apply to the Delaware Court of Chancery for the Scheduling Order;
NOW, THEREFORE, the parties agree as follows:
1. Sub-Section (a) of Section 10 of the Original Agreement is amended by
changing the date of "October 31, 2004" in clause (iv) to "December 31, 2004."
2. This Second Amendment may be signed in any number of counterparts, all of
which together shall constitute one and the same instrument.
3. All other provisions of the Original Agreement and the Amendment remain fully
in effect.
Agreed to this 29th day of October, 2004 by:
XXXXXXXXX INTERNATIONAL, INC. XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxx Xxxx /s/ Xxxxx X. Xxxxxxxx
--------------------------------- --------------------------
XXXXX X. XXX XXXX
V.P., GENERAL COUNSEL & SECRETARY
THIRD AMENDMENT TO RELEASE AND SETTLEMENT AGREEMENT
THIS THIRD AMENDMENT (the "Third Amendment") is entered into as of
December 30, 2004, by and between Xxxxxxxxx International Inc.
("International") and Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), and is made with
reference to the Release and Settlement Agreement dated April 27, 2004 (the
"Original Agreement"), the Amendment and the Second Amendment. The Original
Agreement, the Amendment, the Second Amendment and the Third Amendment are
collectively referred to herein as the "Agreement". Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Original Agreement, the Amendment and the Second Amendment.
RECITALS
WHEREAS, the parties agree that they need additional time to continue
their discussions regarding the language of the Agreement to more appropriately
reflect their intent, to facilitate its aproval by the Court, and to adequately
protect the interests of both parties,
NOW, THEREFORE, for and in consideration of the mutual representations,
warranties, covenants and agreements contained in the Agreement, and intending
to be legally bound hereby, the parties agree as follows:
1. Sub-Section (a) of Section 10 of the Original Agreement is further amended
by changing the date of "October 31, 2004" in clause (iv) (which had
previously been amended to December 31, 2004 by the Second Amendment) to
"January 15, 2005."
2. The parties agree that this extension is in furtherance of the
considerations described above and is without prejudice to the parties'
respective rights and that the parties reserve all their respective rights.
3. This Third Amendment may be signed in any number of counterparts, all of
which together shall constitute one and the same instrument.
Agreed to this 30th day of December, 2004 by:
XXXXXXXXX INTERNATIONAL INC. XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxx Xxxx/KLS /s/ Xxxxx X. Xxxxxxxx
------------------------- ---------------------
Xxxxx X. Xxx Xxxx
V.P., General Counsel & Secretary
FOURTH AMENDMENT TO RELEASE AND SETTLEMENT AGREEMENT
THIS FOURTH AMENDMENT (the "Fourth Amendment") is entered into as of
January 14, 2005, by and between Xxxxxxxxx International Inc. ("International")
and Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), and is made with reference to the Original
Agreement, the Amendment, the Second Amendment, and the Third Amendment. The
Original Agreement, the Amendment, the Second Amendment, the Third Amendment and
the Fourth Amendment are referred to herein collectively as the "Agreement."
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Agreement.
R E C I T A L S
WHEREAS, the parties have concluded their discussions regarding the
language of the Agreement to more appropriately reflect their intent to
facilitate its approval by the Court and to adequately protect the interests of
both parties;
WHEREAS, this Agreement is one of a number of Settlements that may be
entered into between the SC, on behalf of International, and others, and that
the SC, on International's behalf, intends to seek Court approval of the
Settlements as a single group to the extent necessary and appropriate and the
parties thus desire to seek an extension of time for the SC to apply to the
Delaware Court of Chancery for the Scheduling Order;
NOW, THEREFORE, for and in consideration of the mutual representations,
warranties, covenants and agreements contained in the Agreement, and intending
to be legally bound hereby, subject to the approval of the Court as described in
the Original Agreement, the parties agree as follows:
1. The following WHEREAS clause in the Original Agreement is deleted in its
entirety:
WHEREAS, Xxxxxxxx wishes to settle and finally resolve all actual or
potential claims arising out of or relating to the matters that have been or may
be asserted against him in the Cardinal Action and the Illinois Action;
and replaced by the following:
WHEREAS, Xxxxxxxx wishes to settle and finally resolve all actual or
potential claims arising out of or relating to the matters that have been or may
be asserted against him by International and its subsidiaries in the Cardinal
Action and the Illinois Action;
2. The following WHEREAS clause in the Original Agreement is deleted in its
entirety:
WHEREAS, Xxxxxxxx has agreed to enter into the Agreement to resolve any
potential liability in connection with the Cardinal Action and the Illinois
Action, and to reduce further expense, inconvenience and the distraction of
burdensome and protracted litigation;
and replaced by the following:
WHEREAS, Xxxxxxxx has agreed to enter into the Agreement to resolve any
potential liability to International and its subsidiaries in connection with the
Cardinal Action and the Illinois Action, and to reduce further expense,
inconvenience and the distraction of burdensome and protracted litigation.
3. Section 4 of the Original Agreement is deleted in its entirety and replaced
by the following:
4. Release and Settlement.
a. Upon Final Approval, and payment in full of the Settlement Amount,
International and its subsidiaries do hereby fully, finally and forever release
Xxxxxxxx and any and all of his personal agents, spouses, heirs, survivors and
executors (collectively with Xxxxxxxx, the "Xxxxxxxx Releasees") from any and
all rights, interests, obligations, debts, dues, sums of money, accounts,
reckonings, damages, claims, actions, allegations, causes of action,
counterclaims or demands whatsoever, whether known or unknown, in law or in
equity, that have been or that could be asserted, relating to the subject matter
of the Cardinal Action, the Illinois Action and/or the Report of Investigation
by the Special Committee of the Board of Directors of Xxxxxxxxx International
Inc. dated August 30, 2004 (the "SC Report") against any of the Xxxxxxxx
Releasees (the "Settled Claims"); and Xxxxxxxx and any and all of his personal
agents, spouses, heirs, survivors and executors do hereby fully, finally and
forever release International and any and all of its predecessors, successors,
assigns, affiliates, subsidiaries, divisions, and its current and former
officers, directors, shareholders, employees, attorneys, agents, advisors, and
representatives (collectively with International, the "International Releasees")
from any and all rights, interests, obligations, debts, dues, sums of money,
accounts, reckonings, damages, claims, actions, allegations, causes of action,
counterclaims or demands whatsoever, whether known or unknown, in law or in
equity, that have been or that could be asserted, relating to the subject matter
of the Cardinal Action, the Illinois Action and/or the SC Report against any of
the International Releasees.
b. The International Releasees do not include Xxxxxxxxx Inc., The Ravelston
Corporation Limited, Ravelston Management Inc., Xxxxxx X. Xxxxx, F. Xxxxx
Xxxxxx, Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxx Black, and Xxxxxxx
Xxxxx, who are the defendants named in the Second Amended Complaint filed on
October 29, 2004 in the Illinois Action (the "Illinois Action Defendants").
c. Notwithstanding any other section or sub-section in this Agreement, Xxxx
X. Xxxxxx ("Xxxxxx") is included as a member of the International Releasees only
under the condition that that Xxxxxxxx Releasees are not, and do not become, the
subject of any claim of any nature asserted by Xxxxxx and/or his spouses, heirs,
survivors, or executors, including but not limited to a cross-claim or
counterclaim, relating to the subject matter of the Cardinal Action, the
Illinois Action and the SC Report (a "Xxxxxx Claim"). Should any of the Xxxxxxxx
Releasees become the subject of any Xxxxxx Claim, then the release being
provided by the Xxxxxxxx Releasees hereunder is void solely to the extent of any
counterclaims the Xxxxxxxx Releasees have against
2
Xxxxxx, but only up to the amount of any recovery Xxxxxx obtains from the
Xxxxxxxx Releasees (excluding any Xxxxxxxx unreimbursed attorneys' fees).
d. Notwithstanding any other section or sub-section in this Agreement, Xxxx
X. Xxxx ("Xxxx") is included as a member of the International Releasees only
under the condition that that Xxxxxxxx Releasees are not, and do not become, the
subject of any claim of any nature asserted by Xxxx and/or his spouses, heirs,
survivors, or executors, including but not limited to a cross-claim or
counterclaim, relating to the subject matter of the Cardinal Action, the
Illinois Action and the SC Report (a "Xxxx Claim"). Should any of the Xxxxxxxx
Releasees become the subject of any Xxxx Claim, then the release being provided
by the Xxxxxxxx Releasees hereunder is void solely to the extent of any
counterclaims the Xxxxxxxx Releasees have against Xxxx, but only up to the
amount of any recovery Xxxx obtains from the Xxxxxxxx Releasees (excluding any
Xxxxxxxx unreimbursed attorneys' fees).
e. The releases provided under this Section 4 also do not relate to any
pending or future securities class action suits and do not affect the rights of
contribution and indemnification the parties to this Agreement may have against
each other in any securities class action suits. The releases also do not
release Xxxxxxxx or International from their respective obligations under this
Agreement or the Consulting Agreement.
f. In connection with any settlement between or among (i) International
and/or its subsidiaries and (ii) any former or current directors or officers of
International or any former or current directors or officers of International's
subsidiaries in respect of any claims of any nature relating to the subject
matter of the Cardinal Action, the Illinois Action, and/or the SC Report,
International and/or its subsidiaries shall use commercially reasonable efforts,
in good faith, to obtain a release of all claims of any nature that such
settling officer or director has or may thereafter have against the Xxxxxxxx
Releasees arising out of or relating to the subject matter of the Cardinal
Action, the Illinois Action and/or the SC Report.
g. For purposes of further clarification, the words "personal agents" in
Section 4 and "agents" in Section 14 of the Agreement, as both of these sections
are amended herein, refer and apply only to Xxxxxxxx'x personal agents,
including but not limited to his attorneys or accountants who represent him in
his personal capacity, and, notwithstanding the foregoing, do not release or
apply to other former or current officers, agents, attorneys, accountants,
directors, employees or affiliated companies of International, Xxxxxxxxx Inc.,
or The Ravelston Corporation Limited, including without limitation the Illinois
Action Defendants. Similarly, the words "spouses," "heirs," "successors,"
"administrators" and "executors" in Sections 4 and 14 do not release or apply to
other former or current officers, agents, attorneys, accountants, directors,
employees or affiliated companies of International, Xxxxxxxxx Inc., or The
Ravelston Corporation Limited, including without limitation the Illinois Action
Defendants.
4. Sub-section (a) of Section 7 is deleted in its entirety and replaced by the
following:
a. a settlement hearing (the "Settlement Hearing") be held to determine
whether the Court should: (i) approve the Settlements pursuant to the Chancery
Court's Rule 23.1 as fair, reasonable, and adequate and in the best interests of
International's stockholders; and (ii) enter an Order and Final Judgment
dismissing Xxxxxxxx from the Cardinal Action with prejudice, each
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party to bear its own costs and release and enjoin prosecution by International
and its subsidiaries against Xxxxxxxx of any and all Settled Claims; and (iii)
hear such other matters as the Court may deem necessary and appropriate; and
5. Sub-section (c) of Section 9 is deleted in its entirety and replaced by the
following:
c. dismiss Xxxxxxxx from the Cardinal Action with prejudice; extinguish,
discharge and release, any and all Settled Claims as against Xxxxxxxx, said
dismissal subject only to compliance by International and Xxxxxxxx with the
terms of this Agreement and any Order of the Court concerning this Agreement;
and permanently enjoin International and its subsidiaries from asserting,
commencing, prosecuting or continuing any of the Settled Claims.
6. Sub-Section (a) of Section 10 of the Original Agreement is further amended by
changing the date of "January 15, 2005" in clause (iv) (which had previously
been amended to January 15, 2005 by the Third Amendment) to "March 31, 2005."
7. Section 11 is deleted in its entirety and replaced by the following:
11. Governing Law; Choice of Forum; Jury Waiver. This Agreement and any
claim related directly to this Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law thereof. All disputes arising out or relating to
this Agreement or its breach shall be resolved in the courts located within the
State of Delaware, New Castle County, and Xxxxxxxx and International hereby
submit exclusively to the jurisdiction and venue of those Delaware courts. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE ARISING OUT OF THIS
AGREEMENT.
8. Section 14 is deleted in its entirety and replaced by the following:
14. Successors. This Agreement shall apply to Xxxxxxxx, as well as his
heirs, agents, executors, and administrators. Except as otherwise expressly
provided in this Agreement, the Agreement also shall apply to, and inure to the
benefit of, International and its subsidiaries and any successors of
International and its subsidiaries that International may designate.
9. [REDACTED]
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10. This Fourth Amendment may be signed in any number of counterparts, all of
which together shall constitute one and the same instrument.
Agreed to this 14th day of January 2005 by:
XXXXXXXXX INTERNATIONAL INC. XXXXX X. XXXXXXXX
By:/s/ Xxxxx X. Xxx Xxxx /s/ Xxxxx X. Xxxxxxxx
------------------------- ---------------------
Xxxxx X. Xxx Xxxx
Vice President, General
Counsel and Secretary
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