Exhibit 10.22a
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Settlement Agreement") is entered
into and made effective the 13th day of May, 2002 (the "Effective Date") by and
among RadioShack Corporation (formerly known as Tandy Corporation)
("RadioShack"), TE Electronics L.P. (formerly TE Electronics Inc.) ("TE
Electronics"), and X'Xxxxxxxx Industries Holdings, Inc. ("X'Xxxxxxxx").
RadioShack, TE Electronics, and X'Xxxxxxxx are sometimes collectively referred
to as the "Parties."
WHEREAS, RadioShack and TE Electronics filed an action against
X'Xxxxxxxx entitled Tandy Corp. and TE Electronics, Inc. x. X'Xxxxxxxx
Industries Holdings, Inc., No. 000-000000-00, in the District Court of Tarrant
County, Texas, 352nd Judicial District (the "Texas Action") asserting claims
against X'Xxxxxxxx relating to the calculation of Tax Benefit Payments pursuant
to an Amended and Restated Tax Sharing and Benefit Reimbursement Agreement
between the Parties dated June 19, 1997 (the "Tax Benefit Agreement");
WHEREAS, in a ruling dated October 8, 1999 the Court in the Texas
Action held that ADR provisions of the Tax Benefit Agreement were triggered and
ordered the Parties to resolve their dispute through the ADR provisions of the
Tax Benefit Agreement;
WHEREAS, RadioShack and TE Electronics initiated an arbitration
proceeding against X'Xxxxxxxx (the "Arbitration") asserting that the interest
expense arising from X'Xxxxxxxx'x 1999 recapitalization is not deductible in
calculating payments due from X'Xxxxxxxx to RadioShack under Section 5.03(a)(vi)
of the Tax Benefit Agreement;
WHEREAS, the Parties selected a panel of three arbitrators to
decide the Arbitration (the "Panel") and the Panel conducted an arbitration
hearing on October 8-12, 2001;
WHEREAS, on March 18, 2002 the Panel issued a written opinion
finding that the interest expense arising from X'Xxxxxxxx'x 1999
recapitalization is not deductible in calculating payments due from X'Xxxxxxxx
to RadioShack under Section 5.03(a)(vi) of the Tax Benefit Agreement;
WHEREAS, it is the desire of the Parties to this Settlement
Agreement to avoid the costs and uncertainties attendant upon further litigation
or arbitration and to settle all claims between the Parties to this Settlement
Agreement which have been brought or could have been brought related to the
facts alleged in the Texas Action and the Arbitration upon the terms and
conditions contained in this Settlement Agreement.
NOW, THEREFORE, in consideration of the covenants and other terms
set forth herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and with the intent to be legally
bound hereby, the Parties hereto, without any admission of fault or liability,
do hereby agree as follows:
1. Settlement Payment. Upon execution of this Settlement
Agreement including the Releases (as defined below) by all the Parties,
X'Xxxxxxxx will pay RadioShack, by wire transfer, $21,500,000, in settlement of
all amounts due under the Tax Benefit Agreement for taxable years ending on or
before December 31, 2001, including any interest on any underpayments or claimed
underpayments, and in settlement of all disputes arising from, concerning, or
relating to the Tax Benefit Agreement for taxable years ending on or before
December 31, 2001. The settlement does not satisfy any claims RadioShack or TE
Electronics has against RadioShack's (or TE Electronics') counsel or accountants
as a result of any breach of duty owed to RadioShack or TE Electronics,
respectively, said claims being expressly reserved.
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2. Future Payments. X'Xxxxxxxx shall compute Tax Benefit Payments
for calendar 2002 and later years without deducting interest on debt incurred in
its 1999 recapitalization. Further, X'Xxxxxxxx agrees not to assert a claim
under Section 5.03(a)(iv) of the Tax Benefit Agreement with respect to interest
expense on the debt incurred in the 1999 recapitalization. The Parties agree
that, for purposes of calculating the Tax Benefit Payments for all taxable
years, the amount of interest expense of the Holdings Group which is not
deductible in computing the Tax Benefit Payments for such year is the least of
the following:
(a) 93% of the interest expense of the Holdings Group for such
taxable year;
(b) interest expense of the Holdings Group for such taxable
year which exceeds $2 million; or
(c) interest expense on the Base Indebtedness (as defined
below) for such taxable year.
The "Base Indebtedness" is an amount equal to the least of
(1) $250 million;
(2) the amount of consolidated indebtedness of the Holdings
Group at the end of such taxable year, less $26.0 million;
or
(3) the amount of consolidated indebtedness of the Holdings
Group at the end of any taxable year ending after January
1, 2000.
3. Tax Benefit Deductions Created by the Tax Benefit Payments.
X'Xxxxxxxx and RadioShack agree that the Tax Benefit Payments made by X'Xxxxxxxx
to RadioShack prior to January 1, 2002 are shown on the attached Schedule 1. The
Parties agree that Exhibit A of the Tax Benefit Agreement will be adjusted for
all Tax Benefit Payments reflected on the attached Schedule 1. The Parties also
agree that Exhibit A of the Tax Benefit Agreement shall be revised
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to reflect all Tax Benefit Payments paid to RadioShack after December 31, 2001
for purposes of calculating the Tax Benefit Deductions for all taxable years
beginning after December 31, 2001.
4. Tax Loss Carrybacks. X'Xxxxxxxx agrees, for itself and on
behalf of its subsidiaries, not to seek from RadioShack refunds of any Tax
Benefit Payments for any net operating losses carried back, or deemed to be
carried back, from taxable years ending after December 31, 2001, to taxable
years ending prior to January 1, 2002.
5. Goodwill Amortization Schedule. X'Xxxxxxxx agrees, for itself
and on behalf of its subsidiaries, to amortize all goodwill reflected in
Schedule 1 attached hereto over the useful life of the goodwill prescribed by
Internal Revenue Code Section 197(a).
6. Tax Benefit Payments for Taxable Years Ending prior to January
1, 2002. Notwithstanding Section 4.02(b) of the Tax Benefit Agreement, if there
is a Change to any taxable year ending prior to January 1, 2002:
(a) RadioShack shall not be required to reimburse X'Xxxxxxxx for
any taxes, interest expense, penalties, or any other costs associated with such
Change unless the Change is related to a permanent disallowance of any or all of
the goodwill amortization for a taxable year ending prior to January 1, 2002. A
"permanent disallowance of any or all of the goodwill amortization" is defined
as an action by the IRS that results in a final determination disallowing a
deduction for any or all of the goodwill amortization in a manner which does not
make any or all of the goodwill amortization deduction available as a deduction
in any prior taxable year or subsequent taxable year.
(b) If there is a Change to any taxable year ending prior to
January 1, 2002 which involves a permanent disallowance of any or all of the
goodwill amortization, RadioShack shall, in accordance with the Tax Benefit
Agreement, reimburse X'Xxxxxxxx for the cost of such
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disallowance, except that, in the event of such a Change, RadioShack and
X'Xxxxxxxx agree that a reduction in the amount of interest expense owed by
RadioShack will be necessary to reflect the fact that RadioShack did not receive
payment of Tax Benefit Payments in 1999, 2000 and 2001 calculated without
deducting interest on debt incurred in its 1999 recapitalization.
7. Dismissal of Action. Upon the execution of this Settlement
Agreement including the Releases (as defined below) by all the Parties,
RadioShack and TE Electronics shall take all steps necessary to dismiss with
prejudice the Arbitration and the claims against X'Xxxxxxxx in Xxxxx Corp. and
TE Electronics, Inc. x. X'Xxxxxxxx Industries Holdings, Inc., No. 000-000000-00,
in the District Court of Tarrant County, Texas, 352nd Judicial District.
Notwithstanding the foregoing, nothing in this Settlement Agreement or in the
Releases shall be construed in any manner as releasing any cause of action
arising out of (i) any breach by RadioShack's or TE Electronics' counsel or
accountants of a duty owed to RadioShack or TE Electronics; or (ii) a breach by
X'Xxxxxxxx'x counsel or accountants of a duty owed to X'Xxxxxxxx.
8. Releases. Concurrent with the execution hereof, the Parties
have executed the Release and Covenant Not to Xxx (each a "Release") to which it
is a party, attached hereto as Exhibits A and B, respectively. RadioShack and TE
Electronics specifically acknowledge that the Release covers both claims that
RadioShack and TE Electronics know about and those that each Party does not know
about. RadioShack and TE Electronics acknowledge that they may hereafter
discover claims or facts in addition to or different from these which they now
know or believe to exist and which, if known or suspected at the time of
executing this Settlement Agreement, may have materially affected the decision
to execute this Settlement Agreement. Nevertheless, RadioShack and TE
Electronics hereby waive any right, claim, or cause of action
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that might arise as a result of such different or additional claims or facts.
Notwithstanding the foregoing, nothing in this Settlement Agreement or in the
Releases shall be construed in any manner as releasing any cause of action
arising out of (i) a breach by RadioShack's or TE Electronics' counsel or
accountants of any duty owed to RadioShack or TE Electronics; or (ii) a breach
by X'Xxxxxxxx'x counsel or accountants of a duty owed to X'Xxxxxxxx.
9. No Costs. The Parties agree to bear their own costs,
including, but not limited to, attorneys fees and costs associated with the
Texas Action, the Arbitration (including their half of the costs of the
Arbitration), and the execution and delivery of this Settlement Agreement.
Notwithstanding the foregoing, nothing in this Settlement Agreement or in the
Releases shall be construed in any manner as releasing any cause of action
arising out of (i) any breach by RadioShack's or TE Electronics' counsel or
accountants of any duty owed to RadioShack or TE Electronics; or (ii) a breach
by X'Xxxxxxxx'x counsel or accountants of a duty owed to X'Xxxxxxxx.
10. Complete Settlement. Subject to the terms of Exhibits A and
B, which control over this Section, this Settlement Agreement shall be a full,
binding and complete settlement among the Parties. This Settlement Agreement
constitutes the entire agreement among the Parties with respect to the subject
matter of this Settlement Agreement and supercedes any prior agreements and
understandings with respect to such subject matter. This Settlement Agreement
may be changed, waived, modified, or terminated only by a written instrument
signed by all Parties to this Settlement Agreement.
11. No Admission. This Settlement Agreement is a compromise of
disputes and claims and nothing herein shall be deemed or construed to be an
admission or concession of any liability or wrongdoing whatsoever. All Parties
expressly deny liability as to all such
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disputes and claims and intend merely to avoid further litigation, burden and
expense with respect thereto.
12. Authority. Any individual signing this Settlement Agreement
on behalf of any Party represents and warrants that he or she has full authority
to do so.
13. No Assignment. No Party to this Settlement Agreement shall be
entitled to delegate or assign its respective rights, duties or obligations
hereunder without the prior written consent of all Parties.
14. Counterparts and Fax Signatures. This Settlement Agreement
may be signed using one or more counterparts and by the use of facsimile
transmission of signatures. The several executed copies together shall be
considered an original and shall be binding on the Parties.
15. Governing Law. This Settlement Agreement is governed by, and
is to be construed in accordance with, the laws of the State of New York without
reference to any choice or conflicts of law principles.
16. Voluntary Agreement. This Settlement Agreement is fully and
voluntarily entered into by the Parties hereto. Each Party states that it has
read this Settlement Agreement, has obtained advice of counsel, understands all
of this Settlement Agreement, and executes this Settlement Agreement voluntarily
and of its own free will and accord with full knowledge of the legal
significance and consequences of this Settlement Agreement.
17. Execution. This Settlement Agreement will become binding and
effective upon the exchange of facsimile copies of the required signatures and
the receipt by RadioShack of the $21,500,000 payment referenced herein.
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18. Defined Terms. Capitalized terms used herein without
definition shall have the respective definitions assigned to them in the Tax
Benefit Agreement.
WHEREFORE, the Parties hereby acknowledge their agreement and consent to
the terms and conditions set forth above through the signatures of their duly
authorized representatives:
X'XXXXXXXX INDUSTRIES RADIOSHACK CORPORATION, FKA
HOLDINGS, INC. TANDY CORPORATION
BY: /s/ Xxxxxxx X. Xxxxx BY: /s/ Xxxx X. Xxxx
---------------------------- -------------------------------------
ITS: Senior VP & CFO ITS: Sr. Vice Pres., Gen. Counsel,
--------------------------- Corp. Secty.
------------------------------------
DATED: May 13, 2002 DATED: May 13, 2002
TE ELECTRONICS L.P., FKA
TE ELECTRONICS INC.
BY: /s/ Xxxx X. Xxxx
-------------------------------------
ITS: Vice President & Secretary
------------------------------------
DATED: May 13, 2002
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EXHIBIT A
RELEASE AND COVENANT NOT TO XXX FROM RADIOSHACK AND
TE ELECTRONICS IN FAVOR OF X'XXXXXXXX
RadioShack Corp. (formerly known as Tandy Corp.) ("RadioShack")
and TE Electronics L.P. (formerly known as TE Electronics Inc.) ("TE
Electronics") agree to the following Release and Covenant Not to Xxx:
For consideration received (including but not limited to the
promises and agreements set forth in the Settlement Agreement, dated May 13,
2002 (the "Settlement Agreement"), by and among RadioShack, TE Electronics, and
X'Xxxxxxxx Industries Holdings, Inc. ("X'Xxxxxxxx"), the receipt and sufficiency
of which is hereby acknowledged, and with the intent to be legally bound hereby,
RadioShack and TE Electronics agree as follows:
Except as set forth below, RadioShack and TE Electronics, and
each of their respective subsidiaries, affiliates, successors or assigns,
(herein separately and collectively, the "Releasor") hereby expressly and
unconditionally RELEASES, ACQUITS AND FOREVER DISCHARGES X'Xxxxxxxx and each of
its subsidiaries, affiliates, successors or assigns, directors, officers,
employees, financial advisors, underwriters, agents, accountants, attorneys and
stockholders (herein separately and collectively, the "Releasees"), from any and
all actions, causes of action and suits, counterclaims and joinders, in law, in
equity or otherwise (including without limitation arbitration and administrative
proceedings), whether in contract, in tort, or otherwise, whether now known or
unknown, which the Releasor ever had from the beginning of time through December
31, 2001 concerning, arising from, or related to the Tax Benefit Agreement,
specifically including but not limited to interest on any underpayments or
claimed underpayments of Tax Benefit Payments through December 31, 2001 and all
disputes arising from, concerning or relating to the Tax Benefit Agreement for
taxable years ending on or before December 31, 2001. Notwithstanding the
foregoing, nothing contained in the Settlement Agreement or this Release shall
be construed in any manner as releasing any claims or causes of action which
RadioShack or TE Electronics has or may have against any of their current or
former accountants, accounting firms, lawyers or law firms (collectively,
"RadioShack's Professionals"), even if any of RadioShack's Professionals are
now, at one time were or may have been, financial advisors, accountants or
attorneys of X'Xxxxxxxx, said claims and causes of action against RadioShack's
Professionals being expressly reserved and not released. Neither the Settlement
Agreement nor this Release in any manner prejudices or otherwise limits the
rights of RadioShack or TE Electronics, or both, to recover damages,
specifically including but not limited to interest on any underpayments or
claimed underpayments of Tax Benefit Payments through December 31, 2001 and all
disputes arising from, concerning or relating to the Tax Benefit Agreement for
taxable years ending on or before December 31, 2001, against any of RadioShack's
Professionals, and the payments and other consideration described in the
Settlement Agreement are not full and total satisfaction of RadioShack's and TE
Electronics' damages.
This Release and Covenant Not to Xxx shall not be altered or
modified in any way except by written consent of authorized representatives of
Releasor and Releasees. This Release
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and Covenant Not to Xxx shall be governed by the laws of the State of New York
without reference to the choice of law principles thereof.
RADIOSHACK CORPORATION, FKA TE ELECTRONICS L.P., FKA
TANDY CORPORATION TE ELECTRONICS INC.
BY: BY:
----------------------------- ---------------------------------
ITS: ITS:
----------------------------- ---------------------------------
DATED: May 13, 2002 DATED: May 13, 2002
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EXHIBIT B
RELEASE AND COVENANT NOT TO XXX FROM X'XXXXXXXX IN FAVOR OF
RADIOSHACK AND TE ELECTRONICS
X'Xxxxxxxx Industries Holdings, Inc. ("X'Xxxxxxxx") agrees to the
following Release and Covenant Not to Xxx:
For consideration received (including but not limited to the
promises and agreements set forth in the Settlement Agreement, dated May 13,
2002 (the "Settlement Agreement"), by and among RadioShack, TE Electronics and
X'Xxxxxxxx, the receipt and sufficiency of which is hereby acknowledged, and
with the intent to be legally bound hereby, X'Xxxxxxxx agrees as follows:
X'Xxxxxxxx, and each of its respective subsidiaries, affiliates,
successors or assigns, (herein separately and collectively, the "Releasor")
hereby expressly and unconditionally RELEASES, ACQUITS AND FOREVER DISCHARGES
RadioShack Corporation ("RadioShack") and TE Electronics L.P. ("TE Electronics")
and each of their subsidiaries, affiliates, successors or assigns, agents,
attorneys, accountants and shareholders (herein separately and collectively, the
"Releasees"), from any and all actions, causes of action and suits,
counterclaims and joinders, in law, in equity or otherwise (including without
limitation arbitration and administrative proceedings), whether in contract, in
tort, or otherwise, whether now known or unknown, which the Releasor ever had
from the beginning of time through December 31, 2001 concerning, arising from,
or related to the Tax Benefit Agreement. Notwithstanding the foregoing, nothing
herein shall be construed in any manner as releasing any cause of action arising
out of a breach by X'Xxxxxxxx'x counsel or accountants of a duty owed to
X'Xxxxxxxx.
This Release and Covenant Not to Xxx shall not be altered or
modified in any way except by written consent of authorized representatives of
Releasor and Releasees. This Release and Covenant Not to Xxx shall be governed
by the laws of the State of New York without reference to the choice of law
principles thereof.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
BY:
-----------------------------
ITS:
-----------------------------
DATED: May 13, 2002
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