EXHIBIT 10.44
SECOND AMENDMENT TO THE
AMENDED AND RESTATED STIPULATION OF SETTLEMENT
This Second Amendment to the Amended and Restated Stipulation of
Settlement (this "Amendment") is made as of March 15, 2002, by and between the
Xxxxxx Defendants (as defined in the Stipulation of Settlement described below)
and the Estate Representative (as defined in the Stipulation of Settlement
described below).
RECITALS
WHEREAS, the parties hereto have entered into that certain Stipulation
of Settlement, as amended and restated as of October 10, 2001 (the "Stipulation
of Settlement"); all capitalized terms used but not defined herein shall have
the meaning set forth for such terms in the Stipulation of Settlement;
WHEREAS, pursuant to the Stipulation of Settlement, the Estate
Representative or the Xxxxxx Defendants have the right to terminate the
Stipulation of Settlement if certain conditions have not been satisfied or
waived within a period of time ending on the one hundred eightieth (180th) day
following the Stipulation Execution Date (the "Termination Date"); and
WHEREAS, the Stipulation of Settlement contemplates, among other
things, that Xxxxxx Capital Group will be issuing: (1) the Trust Preferred
Securities and (ii) a number of shares of TCG Common Stock representing 15% of
the issued and outstanding TCG Common Stock (excluding treasury stock) as of
their date of issuance and immediately after giving effect to their issuance
(the "TCG Common Shares" and, together with the Trust Preferred Securities, the
"Settlement Stock") to the Estate Representative;
WHEREAS, the parties determined that it is in both of their interests
to explore the possibility of the Xxxxxx Defendants causing Xxxxxx Capital Group
to pursue an initial public offering of the Settlement Stock, as a possible
alternative to said issuance; and
WHEREAS, the parties have determined that it is therefore in both of
their interests to extend the Termination Date.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree that the Termination Date shall be May 10, 2002.
COUNSEL FOR THE ESTATE REPRESENTATIVE
XXXXXX X. XXXXXXX & ASSOCIATES
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
Estate Representative's Lead Counsel and Chairman
of Estate Representative's Executive Committee
COUNSEL FOR THE XXXXXX DEFENDANTS
XXXXXXXXX, WILL & XXXXX
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
XXXXXXXXX, WILL & XXXXX
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
Counsel for the Xxxxxx Defendants
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