MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (this "Agreement") is made
and entered into this 12th day of February, 1997 by and among The Xxxxx Xxxxxxx
Company ("CW"), DTI Acquisition Corp. ("Subsidiary") and Trident Rowan Group,
Inc., formerly known as De Tomaso Industries, Inc. ("DTI") (CW, Subsidiary and
DTI are hereinafter collectively referred to as the "Parties"). The purpose of
this Agreement is to memorialize the terms and conditions under which the
Parties have agreed to terminate that certain Agreement and Plan of Merger,
dated as of August 14, 1996 (the "Merger Agreement"), including amendment of the
terms of that certain Promissory Note, dated September 17, 1996, in the
principal amount of $2,000,000, executed by CW in favor of DTI (the "Promissory
Note").
In consideration of the obligations undertaken by CW as set forth in
this Agreement, each of Subsidiary and DTI, for itself and for its respective
successors, assigns and predecessors, hereby releases and forever discharges CW
and all of its direct and indirect employees, agents, representatives,
attorneys, directors, officers, servants, successors, assigns, predecessors,
stockholders, subsidiaries, parents, divisions and affiliates (such persons
having such a relation to any of the Parties being referred to collectively as
their "Representatives"), from, and agrees to indemnify them for and hold them
harmless against, any and all claims, debts, demands, rights, liabilities,
causes of action, losses, damages, costs or expenses (including attorneys' fees)
of whatsoever kind and nature (collectively, "Losses"), directly or indirectly
arising from, resulting from, or relating in any way to the Merger Agreement or
the transactions contemplated thereunder, including, without limitation, any and
all Losses allegedly incurred by either or both of Subsidiary and DTI or any of
their respective Representatives as a result of, among other things, (i) the
breach by CW or any of its Representatives of any provisions of the Merger
Agreement, (ii) the breach of any other duty or obligation allegedly owed to
either or both of Subsidiary and DTI or any of their respective Representatives,
(iii) any alleged act or omission on the part of CW or any of its
Representatives related, directly or indirectly, to the business of Subsidiary
or DTI or the business relationships between or among any of the Parties, or
(iv) any communications made by CW or any of its Representatives to either or
both of Subsidiary and DTI or any of their respective Representatives, from the
beginning of time through the date hereof. In addition, Subsidiary and DTI
hereby release and forever discharge any third party with whom CW has had
conversations or other contacts regarding a possible merger with, or acquisition
of, CW from any and all claims directly or indirectly arising from such
conversations, including, without limitation, claims of tortious interference
with contractual relationship.
In consideration of the obligations undertaken by Subsidiary and DTI as
set forth in this Agreement, CW, for itself and for its successors, assigns and
predecessors, hereby releases and forever discharges Subsidiary and DTI and all
of their respective Representatives from, and agrees to indemnify them for and
hold them harmless against, any and all Losses, directly or
indirectly arising from, resulting from, or relating in any way to the Merger
Agreement or the transactions contemplated thereunder, including, without
limitation, any and all Losses allegedly incurred by CW or any of its
Representatives as a result of, among other things, (i) the breach by either or
both of Subsidiary or DTI or any of their respective Representatives of any
provisions of the Merger Agreement, (ii) the breach of any other duty or
obligation allegedly owed to CW or any of its Representatives, (iii) any alleged
act or omission on the part of either or both of Subsidiary and DTI or any of
their respective Representatives related, directly or indirectly, to the
business of CW or the business relationships between or among any of the
Parties, or (iv) any communications made by either or bo of Subsidiary or DTI or
any of their respective Representatives to CW or any of its Representatives,
from the beginning of time through the date hereof.
Each of the Parties agrees and understands that it may have suffered
damages as a result of the matters referred to above that are unknown to it at
present. Each Party acknowledges that the release and other consideration
received by such Party under this Agreement is intended to and does release and
discharge any claims by such Party in regard to such unknown damages, including
effects or consequences thereof, and regardless of mistake or fact of law, and
each Party does hereby waive any rights to assert in the future any such claims.
Notwithstanding anything contained herein to the contrary, none of the
Parties hereto is releasing the others from any obligation expressly arising
under (a) the terms of this Agreement, (b) the Promissory Note, as amended by
the Allonge (as defined in Section 3 hereof, or (c) the Confidentiality
Agreement (as defined in subsection 6.b hereof).
Furthermore, and in consideration of the obligations undertaken in this
Agreement, the Parties also agree as follows:
1. Reimbursement of Expenses. CW hereby agrees to pay to DTI, not later
than close of business February 18, 1997, Two Hundred Thousand Dollars
($200,000), as liquidated damages in lieu of reimbursement for expenses incurred
by DTI in connection with the negotiation and preparation of the Merger
Agreement. In the event of the failure to pay this amount when due, such payment
shall accrue interest at an annual rate of fourteen percent (14%) until paid in
full.
2. Change of Control. In the event that CW experiences a Change of
Control at any time subsequent to the date hereof through May 11, 1998, the
following provisions shall apply:
a. CW shall provide DTI with written notice of such Change of Control
not later an the effective date of such Change of Control.
b. As additional liquidated damages in lieu of any potential claims for
Losses to DTI attributable to the non-consummation of the transactions
contemplated by the Merger Agreement, CW agrees to pay an additional
amount (the "Change of Control Fee") to
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DTI as of the effective date of such Change of Control of Five Hundred
Thousand Dollars ($500,000).
c. In the event that CW fails to notify DTI of a Change of Control as
provided for in subsection 2.a. above or fails to pay the Change of
Control Fee when due pursuant to Subsection 2.b. above, the Change of
Control Fee shall accrue interest from and after the effective date of
the Change of Control at an annual rate of fourteen percent (14%) until
such Change of Control Fee is paid by CW in full.
d. For purposes of this Section 2, a "Change of Control" shall mean (i)
a merger or consolidation to which CW is a party with a third party
which results in a transfer of ownership of a majority of the
outstanding shares of voting common stock of CW, (ii) any acquisition
by a third party of a majority of the outstanding shares of voting
common stock of CW, or (iii) a sale of all or substantially all of the
assets of CW to a third party (including for this purpose the sale of
stock of material subsidiaries).
3. Allonge to Promissory Note. On the date hereof, CW and DTI shall
execute, and CW shall deliver to DTI, the Allonge to Promissory Note (the
"Allonge") in the form attached hereto as Exhibit A.
4. Termination of Merger Agreement. Effective immediately upon
execution of this Agreement by each of the Parties, the Merger Agreement, and
all rights and obligations of each of the Parties thereunder, shall terminate
and be of no further force and effect and the sole binding and enforceable
rights and obligations of the Parties to each other shall be those rights and
obligations provided for in this Agreement, the Promissory Note, as amended by
the Allonge, and the Confidentiality Agreement.
5. Press Release. DTI shall promptly issue a press release regarding
the termination of the Merger Agreement and the transactions contemplated
thereunder, which press release shall be in the form attached hereto as Exhibit
B and made a part hereof. Each Party covenants and agrees not to make any
statements to third parties inconsistent with the terms of such press release or
which disparage or otherwise reflect poorly on the other Parties. DTI's press
release shall not be disseminated by DTI to any media located in the
Washington-Baltimore metropolitan areas (except pursuant to national
distribution).
6. Other Provisions.
a. The Parties acknowledge and agree that this Agreement is in
settlement of potential claims for Loss, and is in no way an admission
of liability by any Party with regard to such potential claims,
liability for which is expressly denied.
b. Each of CW and DTI hereby agree that the terms and conditions of the
Mutual Non-Disclosure and Confidentiality Agreement, dated June 12,
1996, between CW and
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DTI (the "Confidentiality Agreement") shall survive execution of this
Agreement and shall remain in full force and effect. Furthermore,
except as provided in Section 5 above, the Parties agree that all
communications among the Parties and their respective counsel relating
to this Agreement and the subject matter hereof, the terms and
conditions of this Agreement, and all negotiations relating thereto,
are privileged and confidential and shall not be discussed, commented
upon, referred to or disclosed in any manner to anyone other than the
Parties and their counsel, accountants and other advisors, unless such
disclosure is compelled by a court order or otherwise by law, and shall
not, under any circumstances, be disclosed, mentioned or in any manner
used in any subsequent proceeding between the parties, except for the
purpose of enforcing this Agreement; provided, however, that the
parties may disclose, without further comment, that the business
relationship between CW, on e one hand, and Subsidiary and DTI, on the
other hand, has been voluntarily terminated pursuant to a confidential
agreement among the Parties. Notwithstanding the foregoing, CW may
disclose the terms of this Agreement to any person or entity that is
interested in engaging in a Change of Control transaction with CW and
each of CW and DTI may make such disclosure of the terms of this
Agreement as is required by applicable law. In addition, each Party
shall be entitled to disclose to its employees and contractors the
circumstances surrounding the termination of the Merger Agreement.
c. This Agreement shall be binding upon each Party and its successors,
assigns, and predecessors.
d. Each Party hereby represents and warrants to the other Parties that
it has the authority and is duly authorized to execute, deliver and
perform this Agreement.
e. This Agreement is to be interpreted and governed by the laws of the
State of Maryland.
f. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered if by hand, by express delivery or
facsimile transmission (with a copy by mail) or three business days
after the same is mailed, by certified or registered mail with postage
prepaid:
If to CW, to: The Xxxxx Xxxxxxx Company
0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxxx,
President and CEO
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With copies to: Xxxxxxxxxxx Xxxxxx, Executive Vice
President and General Counsel
0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
and
Xxxxxx, Flyer & Xxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Flyer, Esq.
or to such other person or address as CW shall furnish to DTI in writing.
If to DTI or
Subsidiary, to: Trident Rowan Group, Inc.
Finprogetti S.p.A.
Xxx Xxxxx 0
00000 Xxxxxx, Xxxxx
Fax: 00-000000000
Attn: Xxxxxx X. Xxxxx, President
With a copy to: Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
or to such other person or address as DTI shall furnish to CW in writing.
g. If, as a result of a breach of any of the provisions of this
Agreement, legal action shall be commenced, the prevailing party
thereto shall be entitled to recover all costs and expenses from the
other party, including, without limitation, all reasonable attorneys'
fees.
h. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
i. In the event of the failure by CW to pay any amount owed to DTI
under Section 1 hereof when due, or any amount owed to DTI under
Section 2 hereof within five (5)
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business days after same is due, CW hereby irrevocably authorizes and
appoints DTI as its true and lawful attorney-in-fact, to confess
judgment against CW in the full amount so due in favor of DTI in any
Court of Record in the State of Maryland. CW expressly waives summons
and other process and consents to the immediate execution of said
judgment. The authority herein granted to confess judgment shall not be
exhausted by any exercise thereof but shall continue from time to time
and at all times until full payment of all amounts due hereunder. CW
hereby ratifies and confirms the acts of said attorney-in-fact as fully
as if done by CW itself.
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IN WITNESS WHEREOF, the undersigned have entered into this
Agreement, by their respective duly authorized officers, as of the day and year
first above written.
ATTEST: TRIDENT ROWAN GROUP, INC.
F/k/a DeTomaso Industries, Inc.
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ -------------------------------------------
Xxxxxx X. Xxxxx, President
ATTEST: DTI ACQUISITION CORP.
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ -------------------------------------------
Xxxxxx X. Xxxxx, President
ATTEST: THE XXXXX XXXXXXX COMPANY
[Illegible] By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------ -------------------------------------------
Xxxxxx X. Xxxxxxxxxx,
President and Chief Executive Officer
EXHIBIT A
ALLONGE TO PROMISSORY NOTE
THIS ALLONGE TO PROMISSORY NOTE (this "Allonge") is made and entered
into this 12th day of February, 1997, to be attached to, modify, and be a part
of that certain Promissory Note in the original principal sum of up to Two
Million Dollars ($2,000,000.00) dated February 17, 1996 (the "Note"), made by
THE XXXXX XXXXXXX COMPANY (the "Borrower"), payable to the order of DE TOMASO
INDUSTRIES, INC. (the "Lender"), the terms and conditions of which Promissory
Note are hereby modified and amended as follows:
1. The Note is hereby amended by deleting the reference to "$2,000,000"
in the left-hand corner of the Note and replacing it with "$1,000,000".
2. The first paragraph of the Note is hereby amended by deleting it in
its entirety and inserting in lieu thereof the following:
FOR VALUE RECEIVED, the undersigned, THE XXXXX XXXXXXX COMPANY, a
Delaware corporation having an address at 0000 Xxxxxxxxx Xxxxx, Xxxxx
000X, Xxxxxxxx, Xxxxxxxx 00000 (the "Borrower"), hereby promises to pay
to the order of TRIDENT ROWAN GROUP, INC., F/k/a DE TOMASO INDUSTRIES,
INC., a Maryland corporation having an address at c/o Finprogetti
S.p.A., Xxx Xxxxx 0, 00000 Xxxxxx, Xxxxx (the "Lender"), the principal
sum of ONE MILLION AND 00/100 DOLLARS ($1,000,000.00), together with
interest thereon from time to time as provided herein.
The principal sum hereof shall be repaid in the following installments:
(a) Three Hundred Thousand Dollars ($300,000) on or before May 12,
1997;
(b) Three Hundred Fifty Thousand Dollars ($350,000) on or before
October 31, 1997;
(c) Fifty Thousand Dollars ($50,000) on or before December 31, 1997;
and
(d) Three Hundred Thousand Dollars ($300,000) on or before April 1,
1998.
Notwithstanding the foregoing, in the event of a "Change of Control" as
defined in that certain Mutual Release and Settlement Agreement by and
among Borrower, Lender and DTI Acquisition Corp. of even date of this
Allonge, any unpaid principal sum hereof and all accrued and unpaid
interest shall be immediately due and payable in full. In addition, in
the event that Borrower shall receive a bridge loan or similar
financing from a party interested in entering into a Change of Control
transaction with Borrower, Borrower shall
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use the first proceeds of such financing (up to the remaining amounts
owed hereunder) as a prepayment of the amounts due hereunder.
3. The second paragraph of the Note is hereby deleted in its entirety.
4. The third paragraph of the Note is hereby amended by deleting the
third sentence in its entirety.
5. The sixth paragraph of the Note is hereby amended by deleting it in
its entirety and substituting in lieu thereof the following:
The occurrence of any of the following events shall constitute an Event
of Default by Borrower hereunder:
1. the Borrower shall default in the payment of the principal
of this Note, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise and such default
shall continue for a period of five (5) days after written notice; or
2. the Borrower shall default in the payment of interest on
this Note according to its terms, when and as the same shall become due
and payable and such default shall continue for a period of five (5)
days after written notice; or
3. an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (a) relief in respect of the Borrower, or of a
substantial part of its property or assets, under any Federal or state
bankruptcy, insolvency, receivership or similar law, (b) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower, or for a substantial
part of his property or assets, or (c) the winding up or liquidation of
the Borrower's business; and such proceeding or petition shall continue
undismissed for 60 days, or an order or decree approving or ordering
any of the foregoing shall be entered; or
4. the Borrower shall (a) voluntarily commence any proceeding
or file any petition seeking relief under any Federal or state
bankruptcy, insolvency, receivership or similar law, (b) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in paragraph 3
above, (c) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
the Borrower, or for a substantial part of its property or assets, (d)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (e) make a general assignment for
the benefit of creditors, (f) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or (g)
take any action for the purpose of effecting any of the foregoing; or
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5. the Borrower shall have failed to notify the Lender that a
"Change of Control" has occurred as required pursuant to the terms of
that certain Mutual Release and Settlement Agreement by and among
Borrower, Lender and DTI Acquisition Corp.
of even date of this Allonge.
6. The seventh paragraph of the Note is hereby amended by deleting it
in its entirety and substituting in lieu thereof the following:
Upon the occurrence of an Event of Default the entire unpaid principal
amount of this Note, together with accrued interest and all obligations
of the Borrower hereunder to the Lender, may be declared by the Lender
to be immediately due and payable, provided that upon the occurrence of
an Event of Default described in paragraph number 3 or 4 above, the
outstanding principal of and all accrued interest on this Note shall
automatically become immediately due and payable. Upon the occurrence
of an Event of Default under this Note, and until payment in full of
the amount due hereunder, the rate of interest accruing on the unpaid
principal balance shall be fourteen percent (14%) per annum, from and
after the date of the Event of Default, regardless of whether Lender
elects to accelerate the unpaid principal balance in accordance
herewith.
7. The eighth paragraph of the Note is hereby amended by deleting it in
its entirety and substituting in lieu thereof the following:
Upon the occurrence of any one or more Events of Default, the Lender
may proceed to protect and enforce its rights hereunder by suit in
equity, action at law or by other appropriate proceeding, whether for
the specific performance of any covenant or agreement contained in this
Note or in aid of the exercise of any power granted in this Note, or
may proceed to enforce the payment of this Note, or to enforce any
other legal or equitable right of the Lender. No remedy herein
conferred upon the Lender is intended to be exclusive of any other
remedy and each and every such remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. No course of
dealing between the Borrower and the Lender or any delay on the part of
the Lender in exercising any rights hereunder shall operate as a waiver
of any right. Upon the occurrence of an Event of Default hereunder,
Borrower hereby irrevocably authorizes and appoints Lender as its true
and lawful attorney-in-fact, to confess judgment against Borrower in
the full amount due under this Note in favor of Lender in any Court of
Record in the State of Maryland. Borrower expressly waives summons and
other process and consent to the immediate execution of said judgment.
The authority herein granted to confess judgment shall not be exhausted
by any exercise thereof but shall continue from time to time and at all
times until full payment of all amounts due hereunder. Borrower hereby
ratifies and confirms the acts of said attorney-in-fact as fully as if
done by Borrower itself.
8. The thirteenth paragraph of the Note is hereby deleted in its
entirety.
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All other terms and conditions of the Note shall, except as herein or
heretofore modified, remain in full force and effect and all rights, duties,
obligations, and responsibilities of the parties shall be governed and
determined by the Note as the same has been modified by this Allonge.
IN WITNESS WHEREOF the undersigned has executed and delivered
this Allonge as of e date first above written.
THE XXXXX XXXXXXX COMPANY
By:______________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
ACCEPTED AND AGREED TO:
TRIDENT ROWAN GROUP, INC.
f/k/a DE TOMASO INDUSTRIES, INC.
By:_____________________________________
Xxxxxx X. Xxxxx, President
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EXHIBIT B
Press Release
TRG and The Xxxxx Xxxxxxx Company ("CW") have decided to terminate the
agreement pursuant to which TRG was to acquire CW. The termination was mutually
agreed to by the parties in accordance with the terms of their agreement.
CW will pay to TRG $1.2 million, representing repayment of a loan
previously made and a payment in respect of expenses incurred, and an additional
sum payable under certain circumstances.
TRG and CW are actively collaborating in the development of real estate
services business opportunities in Europe.
