EXHIBIT 10.1
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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,
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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 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
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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
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.
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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. Chubb Insurance Company of Canada ("Chubb") and American Home Assurance
Company ("American Home") are currently engaged in discussions with
International pursuant to which they would tender the limits of the insurance
policies named herein to fund a settlement of the Cardinal Action with
International, Xxxxxx X. Andreas, Xxxxxxx X. Xxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X.
Xxxxxxxxx, Xxxxx-Xxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx X. Xxxxxxx, A. Xxxxxx
Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxx Xxxxxxxxxx of Chelsea and Xxxxxx X. Xxxxxx. In
the event Chubb and American Home should require as a condition of that
settlement that Xxxxxxxx execute a mutual release as part of that settlement,
Xxxxxxxx agrees that he will execute a mutual release of Chubb and American
Home, as of the date required by Chubb and American Home, regarding the
following insurance policies: Policy No. 426 90 85 issued by American Home with
a policy period of July 1, 2002 to July 1, 2003; Policy No. 8180-5152 issued by
Chubb with a policy period of July 1, 2002 to July 1, 2003; Policy No. 426 90 86
issued by American Home with a policy period of July 1, 2002 to July 1, 2003.
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
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FIFTH AMENDMENT TO RELEASE AND SETTLEMENT AGREEMENT
THIS FIFTH AMENDMENT (the "Fifth Amendment") is entered into as of
March 28, 2005, by and between Xxxxxxxxx International Inc. ("International")
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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 Amendments to that certain Release and Settlement
Agreement entered into as of May 10, October 29, and December 30, 2004, and
January 14, 2005 (the "Amendments"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Original Agreement.
R E C I T A L S
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 "March 31, 2005" in clause (iv) (which had previously been
amended to March 31, 2005 by the Fourth Amendment) to "May 31, 2005."
2. This Fifth 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 Amendments remain
fully in effect.
Agreed to this 28th day of March, 2005 by:
XXXXXXXXX INTERNATIONAL INC. XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxx Xxxx /s/ Xxxxx X. Xxxxxxxx
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SIXTH AMENDMENT TO RELEASE AND SETTLEMENT AGREEMENT
THIS SIXTH AMENDMENT (the "Sixth Amendment") is entered into as of May
3, 2005, 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 Amendments to that certain Release and Settlement Agreement
entered into as of May 10, October 29, and December 30, 2004, and January 14 and
March 28, 2005 (the "Amendments"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Original Agreement.
R E C I T A L S
WHEREAS, this Agreement is one of a number of such agreements that may
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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 "May 31, 2005" in clause (iv) (which had previously been
amended to May 31, 2005, by the Fifth Amendment) to "September 30, 2005."
2. This Sixth 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 Amendments remain
fully in effect.
Agreed to this 3rd day of May, 2005 by:
XXXXXXXXX INTERNATIONAL INC. XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxx Xxxx /s/ Xxxxx X. Xxxxxxxx
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