Exhibit 10.1
AGREEMENT
This AGREEMENT ("Agreement"), dated as of May 4, 2001, by
and among Horizon Group Properties, Inc., a corporation organized and
existing under the laws of Maryland (the "Company"), Xxxxxx X. Xxxxxx
("Xxxxxx"), Xxxx X. Xxxxxx ("Xxxxxx") and Xxxxxx X. Xxxxxxxxxxxx
("Xxxxxxxxxxxx," and together with Xxxxxx and Xxxxxx, the "Stockholders").
WHEREAS, the Stockholders are presently the beneficial
owners of shares of Common Stock of the Company having a par value of one
cent per share ("Common Stock");
WHEREAS, the Stockholders have expressed their desire to
expand the Company's Board of Directors (the "Board") by an additional
member who is not presently an officer or director of the Company in
accordance with the terms hereof;
WHEREAS, in view of the foregoing and in consideration of
the mutual agreements contained in this document, the Company is prepared
to expand the Board and to appoint Xxxxxx to the Board in accordance with
the terms hereof.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. The Company's Representations and Warranties.
The Company represents and warrants to each of the
Stockholders as follows:
(a) Authority. The Company has the power and
authority to execute, deliver and carry out the terms and provisions of
this Agreement and to consummate the transactions contemplated hereby, and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(b) Enforceability. This Agreement has been duly
executed and delivered by the Company, and, assuming due and valid
authorization, execution and delivery hereof by each of the Stockholders,
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
(c) Consents and Approvals; No Violation. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, result in the
breach of any of the terms or conditions of, constitute a default under or
violate, accelerate or permit the acceleration of any other similar right
of any other party under, the Articles of Amendment and Restatement (the
"Articles") or, except as contemplated by Section 5(a), the Amended and
Restated By-Laws (the "By-Laws") of the Company, any law, rule or
regulation or any agreement, lease, mortgage, note, bond, indenture,
license or other document or undertaking, to which the Company is a party
or by which the Company or its properties may be bound, nor will such
execution, delivery and consummation violate any order, writ, injunction or
decree of any federal, state, local or foreign court, administrative agency
or governmental or regulatory authority or body (each, an "Authority") to
which the Company or any of its properties is subject, the effect of any of
which, either individually or in the aggregate, would impair in any
material respect the ability of the Company to perform its obligations
hereunder.
Section 2. Xxxxxx'x Representations and Warranties.
Xxxxxx represents and warrants to the Company as follows:
(a) Authority. Xxxxxx has the legal capacity and the
power and authority to execute, deliver and carry out the terms and
provisions of this Agreement and to consummate the transactions
contemplated hereby.
(b) Enforceability. This Agreement has been duly
executed and delivered by Xxxxxx, and, assuming due and valid
authorization, execution and delivery hereof by the Company, constitutes a
legal, valid and binding agreement of Xxxxxx, enforceable against Xxxxxx in
accordance with its terms. No trust of which Xxxxxx is a trustee requires
the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby.
(c) Representation of Ownership. Xxxxxx beneficially
owns, as of the date of this Agreement, the shares of Common Stock set
forth in the Schedule 13D filed with the Securities and Exchange Commission
on April 27, 2001 attached hereto as Schedule 2(c) (the "Xxxxxx Schedule
13D"). Except as set forth in the Xxxxxx Schedule 13D, neither Xxxxxx nor
any of his affiliates or associates (for the purposes of this Agreement,
the terms "affiliates" and "associates" shall be defined as such terms are
defined by Rule 12b-2 of Regulation 12B under the Securities Exchange Act
of 1934, as amended ("1934 Act"), except that "associates" shall be deemed
to exclude organizations of which a person is a partner or member in which
such partner or member holds, directly or indirectly, less than a 5%
beneficial interest), (i) beneficially owns any equity securities of the
Company entitled to vote at any meeting of stockholders of the Company
("Voting Securities") or (ii) possesses any rights to acquire any Voting
Securities.
(d) Consents and Approvals; No Violation. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, result in the
breach of any of the terms or conditions of, constitute a default under or
violate, accelerate or permit the acceleration of any other similar right
of any other party under any law, rule or regulation, or any agreement,
lease, mortgage, note, bond, indenture, license or other document or
undertaking, to which Xxxxxx is a party or by which Xxxxxx or his
properties may be bound, nor will such execution, delivery and consummation
violate any order, writ, injunction or decree of any Authority to which
Xxxxxx or any of his properties is subject, the effect of any of which,
either individually or in the aggregate, would impair in any material
respect the ability of Xxxxxx to perform his obligations hereunder.
Section 3. Xxxxxx'x Representations and Warranties.
Xxxxxx represents and warrants to the Company as follows:
(a) Authority. Xxxxxx has the legal capacity and the
power and authority to execute, deliver and carry out the terms and
provisions of this Agreement and to consummate the transactions
contemplated hereby.
(b) Enforceability. This Agreement has been duly
executed and delivered by Xxxxxx, and, assuming due and valid
authorization, execution and delivery hereof by the Company, constitutes a
legal, valid and binding agreement of Xxxxxx, enforceable against Xxxxxx in
accordance with its terms. No trust of which Xxxxxx is a trustee requires
the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby.
(c) Representation of Ownership. Xxxxxx beneficially
owns, as of the date of this Agreement, the shares of Common Stock set
forth in the Schedule 13D filed with the Securities and Exchange Commission
on April 6, 2001 attached hereto as Schedule 3(c) (the "Xxxxxx Schedule
13D"). Except as set forth in the Xxxxxx Schedule 13D, neither Xxxxxx nor
any of his affiliates or associates (i) beneficially owns any Voting
Securities or (ii) possesses any rights to acquire any Voting Securities.
(d) Consents and Approvals; No Violation. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, result in the
breach of any of the terms or conditions of, constitute a default under or
violate, accelerate or permit the acceleration of any other similar right
of any other party under any law, rule or regulation, or any agreement,
lease, mortgage, note, bond, indenture, license or other document or
undertaking, to which Xxxxxx is a party or by which Xxxxxx or his
properties may be bound, nor will such execution, delivery and consummation
violate any order, writ, injunction or decree of any Authority to which
Xxxxxx or any of his properties is subject, the effect of any of which,
either individually or in the aggregate, would impair in any material
respect the ability of Xxxxxx to perform his obligations hereunder.
Section 4. Xxxxxxxxxxxx'x Representations and Warranties.
Xxxxxxxxxxxx represents and warrants to the Company as
follows:
(a) Authority. Xxxxxxxxxxxx has the legal capacity
and the power and authority to execute, deliver and carry out the terms and
provisions of this Agreement and to consummate the transactions
contemplated hereby.
(b) Enforceability. This Agreement has been duly
executed and delivered by Xxxxxxxxxxxx, and, assuming due and valid
authorization, execution and delivery hereof by the Company, constitutes a
legal, valid and binding agreement of Xxxxxxxxxxxx, enforceable against
Xxxxxxxxxxxx in accordance with its terms. No trust of which Xxxxxxxxxxxx
is a trustee requires the consent of any beneficiary to the execution and
delivery of this Agreement or to the consummation of the transactions
contemplated hereby.
(c) Representation of Ownership. Xxxxxxxxxxxx
beneficially owns, as of the date of this Agreement, the shares of Common
Stock set forth in the Schedule 13D filed with the Securities and Exchange
Commission on April 20, 2001 attached hereto as Schedule 4(c) (the
"Xxxxxxxxxxxx Schedule 13D," and together with the Xxxxxx Schedule 13D and
the Xxxxxx Schedule 13D, the "Schedule 13Ds"). Except as set forth in the
Xxxxxxxxxxxx Schedule 13D, neither Xxxxxxxxxxxx nor any of his affiliates
or associates (i) beneficially owns any Voting Securities or (ii) possesses
any rights to acquire any Voting Securities.
(d) Consents and Approvals; No Violation. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, result in the
breach of any of the terms or conditions of, constitute a default under or
violate, accelerate or permit the acceleration of any other similar right
of any other party under any law, rule or regulation, or any agreement,
lease, mortgage, note, bond, indenture, license or other document or
undertaking, to which Xxxxxxxxxxxx is a party or by which Xxxxxxxxxxxx or
his properties may be bound, nor will such execution, delivery and
consummation violate any order, writ, injunction or decree of any Authority
to which Xxxxxxxxxxxx or any of his properties is subject, the effect of
any of which, either individually or in the aggregate, would impair in any
material respect the ability of Xxxxxxxxxxxx to perform his obligations
hereunder.
Section 5. Termination of Proxy Contest. Each of Xxxxxx
and Xxxxxxxxxxxx agrees that his execution and delivery of this Agreement
hereby constitutes notice to the Company of his withdrawal from
consideration as a nominee to the Board at the 2001 Meeting and his
termination of the proxy solicitation in respect of such meeting. Each of
the Stockholders agrees to take any and all other actions under the 1934
Act and otherwise that may be required to fully effectuate the foregoing.
Section 6. Stockholders' Board Representation.
(a) Board Composition. Subject to the terms and
conditions set forth in this Agreement, the Company promptly after, but in
no event later than five (5) business days after, the Company's 2001 annual
meeting of stockholders (the "2001 Meeting"), shall cause the Board to
amend the By-Laws to increase the size of the Board to six (6) members and
cause at that time (i) Xxxxxx to be appointed to fill the newly created
vacancy to the Board and (ii) the creation of an executive committee of the
Board (the "Executive Committee") whose initial members will be Xxxx X.
Xxxxxx and Xxxxxx. Provided that he continuously serves as a Board member
during this time, Xxxxxx shall be entitled to serve as a member of such
executive committee (or successor or comparable committee) until at least
the Company's 2002 annual meeting of stockholders.
(b) Xxxxxx'x Term. Xxxxxx will serve in the class of
directors with terms expiring at the Company's annual meeting in 2002.
Subject to applicable law and so long as each of the Stockholders is in
compliance with such Stockholder's obligations under this Agreement and
Xxxxxx has the legal capacity to serve as a director, the Company agrees to
nominate Xxxxxx as part of the Company's slate of nominees for a subsequent
three (3) year term at the Company's annual meeting in 2002 and to support
such nomination. For so long as Xxxxxx serves as a director of the Company,
except as otherwise provided in this Agreement, Xxxxxx shall be entitled to
all of the rights and powers, and shall be subject to all of the
obligations, as a director of the Company.
Section 7. Grant of Irrevocable Proxy; Agreement to Vote
Shares of Common Stock, Etc.
(a) Each Stockholder hereby irrevocably grants to,
and appoints, Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxx, in their respective
capacities as officers of the Company, and any individual who shall
hereafter succeed to any such office of the Company, and each of them
individually, such Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of such
Stockholder, to vote such shares of Common Stock for the election of Xxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxxx as directors of the Company at the 2001
Meeting and in respect of any other matters that may be brought before the
2001 Meeting by persons other than on behalf of the Company.
(b) Each Stockholder represents that any proxies
heretofore given in respect of such shares of Common Stock are not
irrevocable, and that any such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 7 is coupled with an interest
and may under no circumstances be revoked. Such Stockholder hereby ratifies
and confirms all that such irrevocable proxy may lawfully do or cause to be
done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 2507(d)(1) of
the Maryland General Corporation Law.
(d) So long as Xxxxxx is included in such slate of
nominees and the Company's 2002 annual meeting of stockholders occurs no
later than June 30, 2002 (i) each Stockholder hereby agrees to vote all of
the shares of Common Stock then beneficially owned by such Stockholder in
favor of the Company's slate of nominees at the Company's annual meeting of
stockholders in 2002, and (ii) if requested by the Company, each
Stockholder will irrevocably grant such Stockholder's proxy and
attorney-in-fact for the election of the Company's slate of nominees at
such annual meeting.
Section 8. Restrictions on Stockholders' Transfer of
Common Stock. Each Stockholder severally agrees with, and covenants to, the
Company that prior to the 2001 Meeting such Stockholder shall not, except
as contemplated by the terms of this Agreement, (i) transfer (which term
shall include, without limitation, for the purposes of this Agreement, any
sale, gift, pledge or other disposition), or consent to any transfer of,
any or all of such Stockholder's shares of Common Stock or any interest
therein, (ii) enter into any contract, option or other agreement of
understanding with respect to any transfer of any or all of such shares or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such shares, (iv) deposit such shares
into a voting trust or enter into a voting agreement or arrangement with
respect to such shares or (v) take any other action that would in any way
restrict, limit or interfere with the performance of his obligations
hereunder or the transactions contemplated hereby.
Section 9. Restrictions on Certain Other Actions.
Subject to the provisions contained in the last paragraph
of this Section 9, each Stockholder severally agrees that until June 30,
2002 and, in the case of Xxxxxx, if longer, until the earlier of the date
that Xxxxxx no longer serves as a member of the Board or June 30, 2003,
except (i) upon the prior written invitation of a majority of the Board
other than Xxxxxx (hereinafter referred to as the "Disinterested Majority
of the Board") or (ii) as otherwise contemplated or permitted by this
Agreement, the Stockholders will not and will not permit any affiliate or
associate of the Stockholders to:
(a) make, or in any way participate in, any
"solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A under the 0000 Xxx) with respect to any equity securities of
the Company (including by the execution of actions by written consent),
become a "participant" in any "election contest" (as such terms are defined
or used in Regulation 14A under the 0000 Xxx) with respect to the Company
or seek to advise, encourage or influence any person or entity with respect
to the voting of any equity securities of the Company;
(b) initiate or propose or otherwise solicit or
participate in the solicitation of stockholders for the approval of, one or
more stockholder proposals (including, without limitation, any proposal in
respect of the nomination or election of directors) relating to the Company
(whether pursuant to Rule 14a-8 under the 1934 Act or otherwise) or
knowingly induce any other individual or entity to initiate any stockholder
proposal (including, without limitation, any proposal in respect of the
nomination or election of directors) relating to the Company;
(c) except as reflected in the Schedule 13Ds, form,
join or in any way participate in a "group," act in concert with any other
person or entity or otherwise take any action or actions which would cause
it to be deemed to be part of a "group" (for purposes of Section 13(d) of
the 1934 Act), with respect to any equity securities of the Company;
(d) initiate, participate in or encourage the calling
of a special meeting of stockholders of the Company;
(e) participate in or encourage the formation of any
group which owns or seeks or offers to acquire beneficial ownership of any
equity securities of the Company or rights to acquire such securities or
which seeks or offers to affect control of the Company or for the purpose
of circumventing any provision of this Agreement;
(f) solicit, seek or offer to effect, negotiate with,
or make any statement or proposal, whether written or oral, either alone or
in concert with others, to the Board, to any director or officer of the
Company, or to any other stockholder of the Company, or otherwise formulate
any plan or proposal or make any public announcement, proposal, offer or
filing under the 1934 Act, any similar or successor statute or otherwise,
or take action to cause the Company to make any such filing, with respect
to: (A) any form of business combination or transaction involving equity
securities of the Company including, without limitation, a merger, tender
offer, exchange offer or liquidation of the Company's assets; (B) any form
of restructuring, recapitalization or similar transaction with respect to
the Company or any affiliate thereof, including, without limitation, a
merger, exchange offer or liquidation of the Company's assets; (C) any
acquisition or disposition of assets material to the Company; (D) any
request to amend, waive or terminate the provisions of this Agreement; or
(E) any proposal or other statement inconsistent with the terms and intent
of the Agreement; provided, however, that the Stockholders and their
affiliates and associates may discuss the affairs and prospects of the
Company, the status of the Stockholders' investments in the Company and any
of the matters described in clauses (A) through (E) of this paragraph at
any time, and from time to time, with (i) each other and with their outside
legal and financial advisors or (ii) any member of the Board who is also an
officer of the Company on an informal, cooperative basis, in each case if
as a result of any such discussions the Stockholders are not required to
make, and otherwise do not make, any public announcement or filing under
the 1934 Act otherwise prohibited by this Agreement as a result thereof;
provided further, however, that this provision shall not prevent Xxxxxx,
for so long as Xxxxxx is a member of the Board, from participating in, or
otherwise seeking to affect the outcome of, discussions and votes of the
Board with respect to matters coming before it; or
(g) otherwise act (or permit any investment banker,
attorney, accountant or any other representative retained by them to take
any action as part of such retention), alone or in concert with others
(including by providing financing for another party), to seek or offer to
control or influence, in any manner, the management, Board or policies of
the Company; provided, however, that this provision shall not prevent
Xxxxxx, for so long as Xxxxxx is a member of the Board, from participating
in, or otherwise seeking to affect the outcome of, discussions and votes of
the Board with respect to matters coming before it or from engaging in the
activities permitted by the first proviso contained in Section 9(f);
(h) knowingly instigate or encourage any third party
to take any of the actions enumerated in this Section 9.
Notwithstanding the foregoing, the restrictions on
activities contained in this Section 9 shall not apply to (i) Xxxxxx or
Xxxxxxxxxxxx in the event that Xxxxxx both is removed without cause from
the Executive Committee and is not appointed to a successor or comparable
committee of the Board or (ii) any of the Stockholders in the event that
the size of the Board is increased to more than eight (8) members (except
to the extent of any increase due to contractual arrangements with lenders
to and/or other investors in the Company). Nothing contained in this
Section 9 shall prohibit Xxxxxx, acting in his capacity as a member of the
Board, from taking any action which would be required to be taken by Xxxxxx
in the exercise of his fiduciary duties as a director under applicable law
or any other action which may be specifically authorized by the Board or an
officer of the Company.
Section 10. Mutual Non-Disparagement Covenant, Etc.
(a) Until June 30, 2002 and subject to the terms and
conditions set forth in this Agreement, each of the Stockholders agrees
that he will not in any way disparage the Company or its current and former
officers, directors and employees, verbally or in writing, or make any
statements to the press or to third parties that may reasonably be
derogatory or detrimental to the Company's good name or business
reputation. Likewise, until June 30, 2002 and subject to the terms and
conditions set forth in this Agreement, the officers and directors (other
than Xxxxxx) of the Company shall not make any derogatory or disparaging
statements to the press or to any third parties about the Stockholders,
verbally or in writing that may reasonably be detrimental to the reputation
or credibility of the Stockholders. Nothing in this section shall preclude
any party from responding truthfully to inquiries made in connection with
any legal or governmental proceeding pursuant to subpoena or from making
such other statements may be required by applicable law.
(b) Based on the information contained in the
Schedule 13Ds, the Company agrees that it will not take the position that
any of the shares of Common Stock held by the Stockholders as of the date
of this Agreement constitute Excess Common Stock (as defined in the
Articles) as a result of the actions taken by the Stockholders prior to the
date of this Agreement and the execution, delivery and performance of this
Agreement.
Section 11. Filings of Form 8-K and Schedule 13D. The
Company agrees that it will file a copy of this Agreement as an exhibit to
a Current Report on Form 8-K by no later than two (2) business days after
the date hereof. The Stockholders agree that they will file amendments with
the Securities and Exchange Commission to their respective Schedule 13D to
reflect the terms of this Agreement no later than two (2) business days
after the date hereof.
Section 12. Proxy Supplement; Postponement of Annual
Meeting. Promptly after the date hereof, the Company hereby agrees to mail
additional proxy solicitation materials describing, among other things, the
material terms of this Agreement (the "Proxy Supplement") to the Company's
stockholders in compliance with applicable law. Xxxxxx hereby agrees to
cooperate in timely providing true and correct information regarding Xxxxxx
as may be required for inclusion in the Proxy Supplement. The Stockholders
will have a reasonable opportunity to review and comment on the Proxy
Supplement prior to its mailing. Subject to any requirements of applicable
law, the parties hereby agree that the 2001 Meeting shall be postponed to a
date that is at least 10, but no more than 25, days from the date the Proxy
Supplement is first mailed to the Company's stockholders, it being
understood that such mailing shall begin no later than five (5) business
days after the date of this Agreement.
Section 13. Public Announcements. The parties hereby
agree to jointly issue a press release in the form attached hereto as
Exhibit A by no later than one (1) business day after the date hereof.
Other than the press release referred to in the preceding sentence or as
contemplated in Sections 11 and 12, unless consented to by the other
parties hereto or otherwise required by applicable law, each of the parties
agrees not to make any public disclosure or public statement with respect
to the matters covered by this Agreement.
Section 14. Release of Claims.
(a) Upon the execution of this Agreement by all the
parties hereto, the Stockholders, on their behalf and on behalf of each of
their respective affiliates, associates, personal representatives,
representatives, executors, heirs, administrators, successors, assigns,
spouses, partners, beneficiaries, employees, attorneys, advisors, and
agents (the "Stockholder Releasing Parties"), for good and sufficient
consideration, the receipt of which is acknowledged, release absolutely and
forever discharge the Company and each of its predecessors, successors,
assigns, parents, subsidiaries, divisions, and affiliated companies, and
each of their respective former, current, and future officers, directors,
owners, managers, employees, partners, associates, representatives,
shareholders, attorneys, advisors, and agents, and each of them (the
"Company Released Parties"), from any and all actual or possible claims,
charges, damages, demands, debts, liabilities, losses, accounts,
reckonings, obligations, suits, actions and causes of action of every kind
and nature whatsoever, including but not limited to those arising under
contract, statute or common law, whether or not known or suspected at this
time, which the Stockholder Releasing Parties have, or ever had, owned or
held, or hereafter can, shall or may have against the Company Released
Parties, based upon, arising out of, related to, or by reason of any cause,
occurrence, event, act, fact, circumstance, thing, statement or omission
occurring on or before the date of this Agreement, including, but not
limited to those arising out of any event, occurrence, act, fact,
circumstance, statement or omission that was in any way referenced in the
correspondence between the parties regarding the election of directors in
2001 or in Horizon Group Properties, Inc. v. Xxxxxx X. Xxxxxxxxxxxx, Xxxx
X. Xxxxxx, and Xxxxxx X. Xxxxxx, No. 01 C 2944, filed in the United States
District Court for the Northern District of Illinois (the "Chicago Suit").
(b) Upon execution of this Agreement by all the
parties hereto, the Company, on its own behalf and on behalf of each of its
predecessors, successors, assigns, parents, subsidiaries, divisions, and
affiliated companies, and each of their respective former, current, and
future officers, directors, owners, managers, employees, partners,
associates, representatives, shareholders, attorneys, advisors, and agents
(the "Company Releasing Parties"), for good and sufficient consideration,
the receipt of which is acknowledged, release absolutely and forever
discharge the Stockholders and each of their respective affiliates,
associates, personal representatives, representatives, executors, heirs,
administrators, successors, assigns, spouses, partners, beneficiaries,
employees, attorneys, advisors, and agents (the "Stockholder Released
Parties") from any and all actual or possible claims, charges, damages,
demands, debts, liabilities, losses, accounts, reckonings, obligations,
suits, actions and causes of action of every kind and nature whatsoever,
including but not limited to those arising under contract, statute or
common law, whether or not known or suspected at this time, which the
Company Releasing Parties have, or ever had, owned or held, or hereafter
can, shall or may have against the Stockholder Released Parties, based
upon, arising out of, related to, or by reason of any cause, occurrence,
event, act, fact, circumstance, thing, statement or omission occurring on
or before the date of this Agreement, including, but not limited to those
arising out of any event, occurrence, act, fact, circumstance, statement or
omission that was in any way referenced in the correspondence between the
parties regarding the election of directors in 2001 or in the Chicago Suit.
(c) Each of the Company Releasing Parties and the
Stockholder Releasing Parties warrant that they have not assigned any
alleged claim that is the subject of this release to any other person or
entity, and they are not aware of any claim or potential claim other than
those being released.
(d) This release and Agreement are not, and shall not
be construed to be, an admission of any breach of duty, liability or other
wrongdoing whatsoever by the Company Released Parties or the Stockholder
Released Parties, and neither the release nor the Agreement shall be
offered or used as an admission or evidence of any breach of duty,
liability or other wrongdoing whatsoever.
(e) The Company Releasing Parties agree, as soon as
practicable after the date hereof, to take all steps necessary to dismiss
the Chicago Suit with prejudice as a result of a mutual settlement, with
each party to bear its own costs. The Stockholder Releasing Parties hereby
revoke any and all demands for the election of directors in 2001 previously
delivered to the Company.
Section 15. Miscellaneous Provisions.
(a) Fees and Expenses. Each party hereto agrees to
bear its own fees and expenses relating to each of the matters referred to,
contemplated by or the subject of this Agreement; provided, that the
Company agrees to reimburse Xxxxxxxxxxxx and Xxxxxx for up to one-half (but
not to exceed $65,000 and $15,000, respectively) of their bona fide legal
fees and expenses incurred in connection with such matters within three (3)
business days after (but in no event sooner than the second business day
after the 2001 Meeting) presentation of statements reflecting the same from
Xxxxxxxxxxxx'x and Xxxxxx'x attorneys, respectively.
(b) Xxxxxx as Attorney. Except as expressly provided
herein, nothing in this Agreement shall be deemed to prevent Xxxxxx from
representing or advising as an attorney any of the parties to this
Agreement in connection with matters pertaining to the Company.
(c) Amendment and Modification. This Agreement may be
amended, modified and supplemented only by written agreement of the
Stockholders and the Company (approved by a Disinterested Majority of the
Board).
(d) Notices. All notices, requests, demands and other
communications required or permitted shall be made in writing by
hand-delivery, telecopier (with written confirmation) or air courier
guaranteeing overnight delivery:
(i) If to the Stockholders, to:
Xxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
with a copy to:
Xxxxx & Berne LLP
Ninth Floor, Bond Court Building
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx
and Xxxx X. Xxxxxx
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
and Xxxxxx X. Xxxxxxxxxxxx
0000 00xx Xxxxxx XX
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X 00000-0000
Attention: Xxxxxxx X. Gold
or to such other persons or addresses as the Stockholders shall reasonably
furnish to the Company;
(ii) If to the Company, to:
Horizon Group Properties, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
or to such other persons or addresses as the Company shall reasonably
furnish to the Stockholders in writing.
All such notices, requests, demands and other
communications shall be deemed to have been duly given; at the time
delivered by hand, if personally delivered; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
(e) Severability. Whenever possible, each provision
of this Agreement shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such provision
shall fail to be in effect only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement or of any
such provision.
(f) Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but
except as otherwise provided for or permitted herein neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned
by any party hereto without the prior written consent of the other party.
(g) Governing Law. This Agreement and the legal
relations among the parties hereto shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to its
conflicts of law doctrine.
(h) Jurisdiction and Venue. Each of the Company and
the Stockholders hereby agree that any proceeding relating to this
Agreement shall be brought in the State of Illinois. Each of the Company
and the Stockholders hereby consents to personal jurisdiction in any such
action brought in any such Illinois court, consents to service of process
by registered mail made upon such party and such party's agent and waives
any objection to venue in any such Illinois court or to any claim that any
such Illinois court is an inconvenient forum.
(i) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
(j) Headings. The headings of the Sections of this
Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this
Agreement.
(k) Entire Agreement. This Agreement sets forth the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein, and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, relating to the subject matter hereof.
(l) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by a party of any covenants or
agreements contained in this Agreement will cause the other party to
sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore each of the parties hereto agrees that in the
event of any such breach, the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and agreements and
preliminary and permanent injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity, and
the parties hereto further agree to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
(m) Third Parties. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any
person or corporation, other than the parties hereto and their successors
or assigns, any rights or remedies under or by reason of this Agreement;
provided, however, it is specifically agreed that each of the Released
Parties of the Company and the Stockholders are deemed to be direct third
party beneficiaries of Section 14 of this Agreement and each of them shall
be entitled to the benefits of, and be permitted to enforce, the provisions
of Section 14 as if they were a party to this Agreement.
(n) Further Assurances. Each Stockholder shall, upon
request of the Company, execute and deliver any additional documents and
take such further actions as may reasonably be deemed by the Company to be
necessary or desirable to carry out the provisions hereof including but not
limited to documents and actions necessary or desirable to vest the power
to vote such Stockholder's shares of Common Stock as contemplated by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first above
written.
HORIZON GROUP PROPERTIES, INC.
By: /s/ XXXX X. XXXXXX
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman, President & Chief
Executive Officer
/s/ Xxxxxx X. Xxxxxx
---------------------------------
XXXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
---------------------------------
XXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxxxxxxx
---------------------------------
XXXXXX X. XXXXXXXXXXXX
