RELEASE and SETTLEMENT AGREEMENT (“this Agreement”)
Exhibit 10.1
RELEASE and SETTLEMENT AGREEMENT (“this Agreement”)
This Agreement is made as of June 2, 2005 between:
(1) | AIG Europe (Ireland) Limited (“AIGE(I)”) on the one hand; and | |
(2) | Skillsoft PLC (formerly known as SmartForce PLC) on its own behalf and its subsidiaries, affiliates, predecessors and successors (collectively, “Skillsoft”); and | |
(3) | Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxx X. XxXxxxxx, Xx. Xxxxxxxxx von Prondzynski, Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxx (collectively, the “Individual Insureds”), on the other. |
WHEREAS:
1 | AIGE(I) has issued its Corporate Guard for Directors and Officers Insurance Policy No. FCG 33566 for the Policy Period of April 12, 2002 to September 6, 2008 (the “Policy”) which provides, inter alia, certain coverage pursuant to its terms; and | |
2 | In November and December, 2002, various actions alleging violations of the securities laws of the United States, including Xxx X. Xxxxxxx et al. v. SmartForce Public Limited Company, et al., Xxxxxx X. Xxxx et al. v. SmartForce, PLC, et al., Xxxxxx Xxxxx et al. v. SmartForce PLC d/b/a/ SmartForce, et al., and Xxxxxx Xxxxxxxx v. SmartForce PLC d/b/a SmartForce, et al., were filed in the United States District Court for the District of New Hampshire; and | |
3 | Those actions were consolidated into an action styled In Re Smartforce Plc Securities Litigation no. 02-CV-544-B pending in the United States District Court for the District of New Hampshire alleging violations of the Securities Act of 1933 and the Securities and Exchange Act of 1934 (the “Class Action”); and | |
4 | The United States Securities and Exchange Commission commenced an investigation of the same facts and allegations set forth in the Action styled In the Matter of Skillsoft Plc (B-01915) (the “SEC Investigation”); and | |
5 | The plaintiffs in the Action and the Skillsoft defendants agreed to conclude the Action (the “Settlement”); and | |
6 | An opt-out action styled Xxxx Xxxxxxx, et al. v. Skillsoft PLC (fka Smartforce PLC), et al. no. C 04 4913 was filed in the United States District Court for the Northern District of California (the “Xxxxxxx Action” and collectively with the Class Action, the “Actions”); | |
7 | Skillsoft and the Individual Insureds assert that they have incurred a “Loss” as defined in the Policy (“Loss”) by reason of the defense of the Actions and the SEC Investigation and the payments made and due under the Settlement; and | |
8 | Skillsoft and the Individual Insureds have made claim for reimbursement of their Loss to AIGE(I). |
THEREFORE, the parties agree as follows:
Article 1
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In consideration of the releases and discharges in paragraph 2 below, AIGE(I) will pay the sum of
$15 million US dollars (“the Settlement Sum”) to Skillsoft for and on behalf of Skillsoft and the
Individual Insureds under the Policy within thirty (30) days of receipt of this fully executed
Agreement.
Article 2
In consideration of AIGE(I)’s promise to pay the Settlement Sum in Article 1 above, Skillsoft and
its past and present directors, officers, employees, agents, attorneys, including the Individual
Insureds, and their respective successors, assigns, heirs, executors and legal representatives
(“SkillSoft Releasors”) hereby:
(a) | release and forever discharge AIGE(I) and its parents, subsidiaries, affiliates, directors, officers, employees, agents, attorneys and their respective successors and assigns (“Insurer Releasees”) in respect of, and acknowledge that payment of the Settlement Sum in accordance with paragraph 1 above shall represent full and final settlement and full accord and satisfaction in relation to, all manners of action, actions, causes of action, suits, claims for sums of money, contracts, controversies, agreements, costs, damages, judgments and demands whatsoever, whether known or unknown, reported or unreported, in law or equity which SkillSoft Releasors now have, claim to have, or may in the future have against Insurer Releasees in law, contract, tort or equity in connection with: (a) the Policy; (b) the Actions; (c) the SEC Investigation and (d) any acts, failure to act, omissions, misrepresentations, statements, misstatements, facts, events, transactions, occurrences or other subject matter set forth, alleged, embraced, encompassed, or otherwise referred to in or underlying the Actions and the SEC Investigation (the “Released Matters”); and | |
(b) | agree to indemnify and hold harmless Insurer Releasees in respect of any and all liability, loss, damage, or expense, including without limitation, reasonable attorneys’ fees, arising from all manners of action, actions, causes of action, suits, claims for sums of money, contracts, controversies, agreements, costs, damages, judgments and demands whatsoever in law or equity brought or made against any Insurer Releasee which heretofore and hereafter may be made in connection with the Released Matters by any Skillsoft Releasee. |
Article 3
In consideration of the release from the SkillSoft and the Individual Insureds, AIGE(I) and its
past and present directors, officers, employees, agents, attorneys, including the Individual
Insureds, and their respective successors, assigns, heirs, executors and legal representatives
(“Insurer Releasors”) hereby release and forever discharge the Individual Insureds and SkillSoft
and their respective parents, subsidiaries, affiliates, directors, officers, employees, agents,
attorneys successors and assigns (“SkillSoft Releasees”) in respect of all manners of action,
actions, causes of action, suits, claims for sums of money, contracts, controversies, agreements,
costs, damages, judgments and demands whatsoever, whether known or unknown, reported or unreported,
in law or equity which the Insurer Releasors now have, claim to have, or may in the future have
against SkillSoft Releasees in law, contract, tort or equity in connection with: (a) the Policy;
(b) the Actions; (c) the SEC Investigation and (d) any acts, failure to act, omissions,
misrepresentations, statements, misstatements, facts, events, transactions, occurrences or other
subject matter set forth, alleged, embraced, encompassed, or otherwise referred to in or underlying
the Actions and the SEC Investigation.
Article 4
Skillsoft and the Individual Insureds acknowledge that the limit of liability of the Policy is
exhausted by AIGE(I)’s payment hereunder.
Article 5
The parties and signatories to this Agreement represent and warrant that they each have read and
understand the entire contents of this Agreement and that they have full and complete authority to
execute this Agreement.
Article 6
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This Agreement may be executed in facsimile counterparts each of which shall be deemed an original
and all of which shall be deemed to be one of the same instrument.
Article 7
The terms and conditions of this Agreement constitute the entire agreement of the parties with
respect to this Agreement, and there are no other oral or written understandings or agreements
between the parties relating to the subject matter of this Agreement. This Agreement may only be
modified by a written instrument signed by the parties hereto.
Article 8
No party to this Agreement will disclose the provisions of this Agreement to any other person,
except: (a) to the extent that such disclosure may be required by the operation of law, or by
requirement of competent tribunal or regulatory authority,; (b) to the officers, directors,
accountants, auditors, lenders, bond trustees and reinsurers of a party to this Agreement; (c) to
the legal counsel of any party to this Agreement; (d) to the extent that other disclosures may be
mutually agreed upon and consented to among the parties to this Agreement; (e) by any party in an
action to enforce the terms of this Agreement. Except to the extent that disclosure is permitted
under this Agreement, the parties agree to notify each other promptly in the event any of them
receives any request, disclosure request, subpoena, or court order calling or potentially calling
for production or disclosure of this Agreement.
Neither the negotiation of the terms, conditions or other provisions of this Agreement, nor the
performance of this Agreement shall be used by any Releasee or Releasor for any purpose save in
respect of seeking reinsurance recoveries other than the enforcement of the provisions hereof;
provided, however, that nothing in this sentence shall affect the validity of the releases and
other agreements set forth in this Agreement.
Article 9
This Agreement is governed and construed in accordance with Irish law and in the event of any
dispute concerning the interpretation, effect or obligations of this Agreement Irish law will be
deemed to apply. The parties hereby submit to the exclusive jurisdiction of the Irish courts.
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IN WITNESS WHEREOF, each of AIGE(I) and Skillsoft acting through its duly authorized representative
and the Individual Insureds set their hand and seal as of the date first set forth above.
AIGE(I) EUROPE (Ireland) Ltd. | ||||
By: /s/ Xxxxx X. Xxxxxx 7/04/05 | ||||
its: Senior Claims Adjuster | ||||
Skillsoft PLC | ||||
By: /s/ Xxxxxxx X. Xxxxx | ||||
its: President & CEO | ||||
/s/ Xxxxx Xxxxxxxx
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/s/ Xxxxxxx Xxxxxx | |||
Xxxxx Xxxxxxxx
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Xxxxxxx Xxxxxx | |||
/s/ Xxxxxx X. Xxxxxx
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/s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx | |||
/s/ Xxxx X. Xxxxx
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/s/ Xxxx X. Xxxxxxx | |||
Xxxx X. Xxxxx
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Xxxx X. Xxxxxxx | |||
/s/ Xxxxx X. Xxxxxxxxx
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/s/ Xxxxxxx X. XxXxxxxx | |||
Xxxxx X. Xxxxxxxxx
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Xxxxxxx X. XxXxxxxx | |||
/s/ Xx. Xxxxxxxxx von Prondzynski |
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Xx. Xxxxxxxxx von Prondzynski |
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