Exhibit 2.7
MUTUAL RELEASE
This Mutual Release ("Release") is made and entered into as of the 3rd day
of May, 2002, by and among Continental Illinois Venture Corporation, a Delaware
corporation ("CIVC"), CIVC Partners I, a Delaware limited partnership
("Partners"), each of the other signatories of this Release under the heading
"Sellers" on the signature pages hereto (collectively with Partners and CIVC,
the "Sellers"), TLL Partners, LLC, a Delaware limited liability company
("Purchaser"), Teletouch Communications, Inc., a Delaware corporation
("Teletouch"), Xxxxxx X. Xxxxxx ("Xxxxxx"), a resident of the State of Illinois,
Xxxxxx X. Xxx Xxxx, Xx. ("Xxx Xxxx"), a resident of the State of Illinois, and
Xxxxxxxxxxx X. Xxxxx ("Perry"), a resident of the State of Michigan.
RECITALS
WHEREAS, pursuant to the Option and Securities Agreement dated as of August
24, 2001, by and among Purchaser and the Sellers (the "Agreement") each Seller
granted Purchaser an option to buy all of such Seller's respective right, title
and interest in the Teletouch Securities (as defined in the Agreement); and
WHEREAS, Purchaser has exercised the option in accordance with the
Agreement and has purchased the Teletouch Securities effective as of the date
hereof; and
WHEREAS, Xxxxxx, Xxx Xxxx and Xxxxx ("CIVC Representatives") either have or
have had a relationship with CIVC and Partners during such time that CIVC and
Partners owned Teletouch Securities and as a result of such relationship have
each served on the Board of Directors of Teletouch; and
WHEREAS, the parties hereto desire to achieve finality regarding the
Sellers' and the CIVC Representatives' respective relationships with Teletouch;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Agreement and other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, and on the terms and subject to the conditions contained herein,
the signatories hereto hereby agree as follows. All defined terms not otherwise
defined herein shall have the meanings ascribed to them in the Agreement.
ARTICLE I
EFFECTIVENESS OF RELEASE
This Release is effective at the time of the completion of the Closing of
the purchase and sale of the Teletouch Securities on the Closing Date pursuant
to the Agreement.
ARTICLE II
MUTUAL RELEASES
Section 2.1 Release by Sellers. Except as provided in Section 3.4 below,
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the Sellers and the CIVC Representatives (on behalf of themselves and each of
their successors, assigns and Affiliates), hereby release, acquit and discharge
Purchaser, Teletouch and each of their personal representatives, affiliated
companies, employees, former employees, agents, attorneys, certified public
accountants, financial advisors, legal representatives, general partners,
limited partners, officers, directors, shareholders, successors, and assigns
including Xxxxxx X. XxXxxxxx (the "Other Parties"), of and from any and all
existing known and unknown claims, demands, and causes of action for all
existing known and unknown damages (including, without limitation, punitive and
exemplary damages) and remedies, which have accrued or may accrue to any of the
Sellers or CIVC Representatives on account of any matter related to the
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Teletouch Securities or any Seller's or CIVC Representative's relationship with
Teletouch as a holder of the Teletouch Securities or, subject to Section 3.4, as
an owner, director or officer or former owner, director or officer of Teletouch,
including but not limited to, all claims, demands, and causes of action of any
nature, whether in contract or in tort, whether based upon intentional or
non-intentional conduct, or arising under or by virtue of any statute or
regulation, that are now recognized by law or that may be created or recognized
in the future by any manner, including but not limited to causes of action for:
all actual damages, all exemplary and punitive damages, all penalties of any
kind, any claim of injury, including claims of breach of fiduciary duty,
attorneys fees, expenses, and prejudgment and post-judgment interest, whether
arising before or after the Closing Date and whether such claims are heretofore
or hereafter accruing, whether asserted or unasserted, known or unknown, that
any Seller or CIVC Representative now have or in the future may have against
Purchaser, Teletouch and the Other Parties (collectively, the "Released
Parties"), other than any breach of this Release.
Section 2.2 Release by Purchaser and Teletouch. Except as provided in
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Section 3.4 below, the Purchaser and Teletouch (on behalf of themselves and each
of their successors, assigns and Affiliates) hereby release, acquit and
discharge the Sellers and the CIVC Representatives and each of their personal
representatives, affiliated companies, employees, former employees, agents,
attorneys, certified public accountants, financial advisors, legal
representatives, general partners, limited partners, officers, directors,
shareholders, successors, and assigns (the "Other Seller Parties"), of and from
any and all existing known and unknown claims, demands, and causes of action for
all existing known and unknown damages (including, without limitation, punitive
and exemplary damages) and remedies, which have accrued or may accrue to the
Purchaser or Teletouch on account of any matter related to the Teletouch
Securities or any Seller's or CIVC Representative's relationship with Teletouch,
including a relationship as a holder of the
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Teletouch Securities or as an owner, director or officer or former owner,
director or officer of Teletouch, including but not limited to all claims,
demands, and causes of action of any nature, whether in contract or in tort,
whether based upon intentional or non-intentional conduct, or arising under or
by virtue of any statute or regulation, that are now recognized by law or that
may be created or recognized in the future by any manner, including but not
limited to causes of action for: all actual damages, all exemplary and punitive
damages, all penalties of any kind, any claim of injury, including claims of
breach of fiduciary duty, attorneys fees, expenses, and prejudgment and
post-judgment interest, whether arising before or after the Closing Date and
whether such claims are heretofore or hereafter accruing, whether asserted or
unasserted, known or unknown, that Purchaser or Teletouch now have or in the
future may have against the Sellers and the Other Seller Parties (collectively,
the "Seller Released Parties"), other than any breach of this Release.
Section 2.3 Authority of Signatories. (a) Each of the Sellers and the
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CIVC Representatives expressly warrants to the Released Parties that it is
legally competent and, if an entity, has the corporate, partnership or trust
power and authority to execute this Release, that it is authorized to bind
itself and its affiliates to the terms and provision of this Release and by
executing this Release hereby binds itself and its affliates to the terms and
provisions hereof, that it has not made any promise or agreement to Teletouch or
the Purchaser except as expressed in this Release or pursuant to the Agreement
nor has it made any promise or agreement contrary thereto, that its execution,
delivery and performance of this Release does not conflict with or result in
default under any other agreement to which it is a party, that each Seller and
CIVC Representative is relying on its own judgment and is represented by an
attorney of its own choosing in this matter or had the opportunity to be
represented by an attorney of its own choosing in this matter, that respective
attorney for each has explained the contents of this Release to it and explained
the legal consequences of this Release, and that each Seller and CIVC
Representative understands that this Article
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II shall, at the Closing Date, operate as a full, complete, and final release
and settlement of all possible claims and causes of action relating to the
matters discussed herein, except as otherwise expressly provided herein.
(b) Each of the Purchaser and Teletouch expressly warrants to the Seller
Released Parties that it is legally empowered to execute this Release, that it
is authorized to bind itself and its affiliates to the terms and provision of
this Release and by executing this Release hereby binds its affiliates to the
terms and provisions hereof, that neither Purchaser nor Teletouch has made any
promise or agreement to any Seller or CIVC Representative except as expressed in
this Release or pursuant to the Agreement, nor have they made any promise or
agreement contrary thereto, that their execution, delivery and performance of
this Release does not conflict with or result in a default under any other
agreement to which they are a party, that Purchaser and Teletouch are relying on
their own judgment and each is represented by an attorney of its own choosing in
this matter, that Purchaser's and Teletouch's attorneys have explained the
contents of this Release to them and explained the legal consequences of this
Release, and that Purchaser and Teletouch understand that this Article II shall,
at the Closing Date, operate as a full, complete, and final release and
settlement of all possible claims and causes of action relating to the matters
discussed herein, except as otherwise expressly provided herein.
ARTICLE III
MISCELLANEOUS
Section 3.1 No Admission. Neither the execution nor the delivery of
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this Release, nor the performance of the terms hereof, by any of the parties
hereto shall be considered an admission by any of them of any present or past
wrongdoing or liability, and any and all such alleged admissions or liabilities
are hereby expressly denied by all of the parties hereto.
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Section 3.2 Ownership of Claims. (a) Each of the Sellers and the CIVC
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Representatives warrant to the Released Parties that such party is the sole
owner of, and it has not sold, assigned or otherwise transferred (with or
without consideration) to any person, any claims, liabilities, demands,
obligations, rights, damages, costs, expenses or causes of action or interests
resulting from any matter, related to the Teletouch Securities and each Seller's
and CIVC Representative's relationship with Teletouch as a holder of the
Teletouch Securities, being released hereby.
(b) Each of Purchaser and Teletouch warrants to the Seller Released
Parties that such party is the sole owner of, and it has not sold, assigned or
otherwise transferred (with or without consideration) to any person, any claims,
liabilities, demands, obligations, rights, damages, costs, expenses or causes of
action, or interests resulting from any matter, related to the Teletouch
Securities and Purchaser's relationship with Teletouch as a holder of the
Teletouch Securities, being released hereby.
Section 3.3 Covenants Not to Xxx. It is the intent of the parties that
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the mutual consideration received pursuant to this Release and the Agreement
satisfies and finally resolves all controversies that have arisen or may arise
between or among them in all capacities relating to or arising out of any matter
related to the Teletouch Securities and the parties relationship with Teletouch
as a holder of a Teletouch Security and each of the parties agrees that such
controversies are hereby satisfied and resolved. It is expressly intended and
agreed that no party hereto shall assert against any other party on his or its
behalf, or on behalf of any person not a signatory hereto, any claim based on
the matters encompassed by the mutual releases contained herein.
Section 3.4 Related Agreements. Notwithstanding anything contained
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herein to the contrary, this Release does not modify, release or in any way
alter the obligations and liabilities of any party hereto under Sections 7.1 and
7.2 of the Agreement. Further, notwithstanding anything herein that may be
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construed to the contrary, this Release shall not restrict or limit the right of
the CIVC Representatives to indemnification for claims of third parties within
the coverage of any insurance policy issued to Teletouch for the benefit of its
directors and officers, provided that such third party claims are not brought by
or on behalf of any Seller, CIVC Representative or any of their respective
Affiliates. The Certificate of Incorporation and the By-Laws of Teletouch shall
contain the provisions with respect to indemnification and exculpation horn
liability set forth in Teletouch's Certificate of Incorporation and By-Laws on
the date of this Agreement, which provisions shall not be amended, repealed or
otherwise modified for a period of six years from the Closing Date in any manner
that would adversely affect the rights thereunder of individuals who on or prior
to the Closing Date were directors, officers, employees or agents of Teletouch,
unless such modification is required by law. In addition, during such period,
Teletouch shall use commercially reasonable efforts to maintain in effect its
current directors' and officers' liability insurance covering those persons who
are currently covered on the date of this Agreement by its directors' and
officers' liability insurance policy (the "Indemnified Parties"); provided that
(i) Teletouch may substitute for its current policies with at least the same
coverage containing terms and conditions which are no less advantageous and
provided that said substitution does not result in any gaps or lapses in
coverage with respect to matters occurring prior to the Closing Date or, if such
insurance coverage is not otherwise available, cause Teletouch's directors'
and officers' liability insurance then in effect to cover those persons who are
covered on the date of this Agreement by any such insurance policy with respect
to those matters covered by such insurance policy, and (ii) as used in this
Section 3.4, "commercially reasonable efforts" shall take into account, inter
alia, the cost of maintaining any insurance required under this Section 3.4 in
relation to Teletouch's financial condition.
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Section 3.5 Multiple Counterparts. This Release may be executed in
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multiple counterparts, each of which shall be deemed to be and have the same
force and effect of an original, and all of which, taken together, shall
constitute and be construed as a single agreement.
Section 3.6 Construction. This Release shall not be construed against
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any party because of such party's involvement in the preparation or drafting of
this Release or the Agreement.
Section 3.7 Illegality. If any provision of this Release is held to be
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illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and shall in no way
affect the validity or enforceability of this Release or any other provision
herein.
Section 3.8 Entire Agreement. This Release constitutes the entire
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agreement among the parties as to the matters set forth herein and supersedes
any and all prior agreements or representations with respect to such matters,
whether written or oral, all of which are hereby waived, except for the
agreements and representations referred to or set forth in this Release. The
parties to this Release represent and agree that in deciding to enter into this
Release, they have not relied on any information and/or representation from any
other party or their agents that are not expressly contained in this Release and
that each party has relied solely on its own judgment after obtaining advice of
legal counsel who has read and explained to each such party the entire contents
of this Release in full.
Section 3.9 Governing Law. THIS RELEASE SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE
LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW. Each of the Sellers, CIVC Representatives, Purchaser and Teletouch
irrevocably: (a) agrees that process may be served upon it in any manner
authorized by the laws
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of the State of Texas for such signatory; and (b) covenants not to assert or
plead any objection which it might otherwise have to such jurisdiction and such
process.
IN WITNESS WHEREOF, each of the undesigned has signed, or caused one of its
duly authorized representatives to sign, this Release as of the date first above
written.
PURCHASER:
TLL PARTNERS, LLC
By: ______________________________
Name: ____________________________
Title: ___________________________
SUBSCRIBED AND SWORN to before me by ____________________ on this _____ day
of ____, 200_.
__________________________________
Notary Public, State of ________
TELETOUCH:
TELETOUCH COMMUNICATIONS, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
SUBSCRIBED AND SWORN to before me by ____________________ on this _____ day
of ____, 200__.
__________________________________
Notary Public, State of ________
SELLERS:
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CIVC Partners I
By: ____________________________________
Name: __________________________________
Title: _________________________________
SUBSCRIBED AND SWORN to before me by __________________ on this _______ day
of ________, 200__.
________________________________________
Notary Public, State of _________
Continental Illinois Venture Corporation
By: ____________________________________
Name: __________________________________
Title: _________________________________
SUBSCRIBED AND SWORN to before me by __________________ on this _______ day
of _________, 200__.
________________________________________
Notary Public, State of ________
________________________________________
Xxxxxxx X. Xxxxxxx
SUBSCRIBED AND SWORN to before me by Xxxxxxx X. Xxxxxxx on this _____ day
of ________, 200__.
________________________________________
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Notary Public, State of __________
__________________________________________
Xxxxx X. Xxxxxxx
SUBSCRIBED AND SWORN to before me by Xxxxx X. Xxxxxxx on this _______ day
of ________, 200__.
__________________________________________
Notary Public, State of __________
__________________________________________
Xxxxxxx X. Xxxxxxx
SUBSCRIBED AND SWORN to before me by Xxxxxxx X. Xxxxxxx on this ______day
of ________, 200__.
__________________________________________
Notary Public, State of __________
__________________________________________
Xxxxxx X. Xxxxxxxxx
SUBSCRIBED AND SWORN to before me by Xxxxxx X. Xxxxxxxxx on this ________
day of _______, 200__.
__________________________________________
Notary Public, State of __________
__________________________________________
Xxxx X. Xxxxxxx
SUBSCRIBED AND SWORN to before me by Xxxx X. Xxxxxxx on this _______ day
of ________, 200__.
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__________________________________
Notary Public, State of _______
XXXXXXXX XXXXXXX TRUST
By: ______________________________
Name: ____________________________
Title: ___________________________
SUBSCRIBED AND SWORN to before me by ______________________ on this _____
day of ________, 200__.
__________________________________
Notary Public, State of _______
CIVC REPRESENTATIVES:
__________________________________
Xxxxxx X. Xxxxxx
SUBSCRIBED AND SWORN to before me by Xxxxxx X. Xxxxxx on this ______ day
of ________, 200__.
__________________________________
Notary Public, State of _______
__________________________________
Xxxxxx X. Xxx Xxxx, Xx.
SUBSCRIBED AND SWORN to before me by Xxxxxx X. Xxx Xxxx, Xx. on this ____
day of _______, 200__.
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__________________________________________
Notary Public, State of ________
__________________________________________
Xxxxxxxxxxx X. Xxxxx
SUBSCRIBED AND SWORN to before me by Xxxxxxxxxxx X. Xxxxx on this _______
day of ________, 200__.
__________________________________________
Notary Public, State of ________
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