SETTLEMENT AGREEMENT
Exhibit
10.1
This
Settlement Agreement (the “Settlement Agreement”) is entered into effective as
of November 14, 2005, by and between GUIDANT CORPORATION (“Guidant”), on
the one hand, and XXXXXXX & XXXXXXX (“J&J”), on the other hand, both of
which are sometimes collectively referred to as the “Parties” with reference to
the following:
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1.
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RECITALS:
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a.
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Guidant
and J&J are Parties to the AGREEMENT AND PLAN OF MERGER, dated as of
December 15, 2004 (the “Merger Agreement”), and are entering into an
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of the
date
hereof (the “Amended Agreement”), concurrently with the execution and
delivery of this Settlement
Agreement.
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b.
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Guidant
is the plaintiff and J&J is the defendant in the following litigation
(the “Litigation”): GUIDANT CORPORATION, Plaintiff, -against- XXXXXXX
& XXXXXXX, Xxxxxxxxx, 00 Xxx. 0000 (XXX)
(XXX).
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c.
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Each
of the Parties desires to permanently settle and resolve any and
all
claims, disputes, issues or matters that exist between them relating
to
the matters contemplated by the Merger Agreement or raised by the
Litigation as of the date of this Settlement Agreement and to dismiss
the
Litigation with prejudice.
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d.
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NOW,
THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and subject to the terms and conditions
set
forth below, the Parties desire to, and hereby do, resolve their
differences and agree as follows:
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2.
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AGREEMENTS:
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a.
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Dismissal
With Prejudice.
Immediately following the execution of the Amended Agreement the
Parties
shall execute and file with the Court a Stipulation of Dismissal
With
Prejudice of the Litigation, in the form annexed hereto as Exhibit
A.
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(collectively,
the “J&J Releasees”), from any and all claims, demands, rights of
action, causes of action, lawsuits, damages, indebtedness, liabilities,
obligations, losses or expenses of any nature whatsoever and remedies
therefor, duty or relationship, acts, omissions, misfeasance, malfeasance,
sums of money, accounts, compensation, contracts, controversies,
promises,
rights of indemnity, contribution or liability of any type, kind,
nature,
description or character whatsoever, and irrespective of how, why
or by
reason of what facts, whether known or unknown, suspected or unsuspected,
whether heretofore or now existing or hereafter arising, which could,
might or may be claimed to exist prior to the date hereof, whether
liquidated or unliquidated, whether existing in law or equity and
whether
foreseen or unforeseen, which the Guidant Releasors have or have
had, or
may hereafter claim to have had prior to the Parties’ execution of the
Amended Agreement against any J&J Releasees arising under the Merger
Agreement, including pursuant to or as contemplated by the Litigation.
Notwithstanding anything to the contrary herein, this Settlement
Agreement
and the mutual releases set forth herein, shall not: (i) release
the
J&J Releasees from their obligations under the Amended Agreement; or
(ii) affect the rights of the Guidant Releasors to bring claims under
or
relating to the Amended Agreement, including bringing claims to enforce
their rights under the Amended
Agreement.
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c.
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J&J
Release.
J&J, for itself, its predecessors, successors, assigns, affiliates,
parents, partners, subsidiaries, divisions and transferees (collectively,
the “J&J Releasors”), releases, remises and forever discharges Guidant
and each of its predecessors, successors, assigns, affiliates, parents,
partners, subsidiaries, divisions, transferees, past and present
officers,
directors, agents, representatives, attorneys and employees (collectively,
the “Guidant Releasees”), from any and all claims, demands, rights of
action, causes of action, lawsuits, damages, indebtedness, liabilities,
obligations, losses or expenses of any nature whatsoever and remedies
therefor, duty or relationship, acts, omissions, misfeasance, malfeasance,
sums of money, accounts, compensation, contracts, controversies,
promises,
rights of indemnity, contribution or liability of any type, kind,
nature,
description or character whatsoever, and irrespective of how, why
or by
reason of what facts, whether known or unknown, suspected or unsuspected,
whether heretofore or now existing or hereafter arising, which could,
might or may be claimed to exist prior to the date hereof, whether
liquidated or unliquidated, whether existing in law or equity and
whether
foreseen or unforeseen, which the J&J Releasors have or have had, or
may hereafter claim to have had prior to the Parties’ execution of the
Amended Agreement against any Guidant Releasees arising under the
Merger
Agreement, including pursuant to or as contemplated by the Litigation.
Notwithstanding anything to the contrary herein, this Settlement
Agreement
and the mutual releases set forth herein, shall not: (i) release
the
Guidant Releasees from their obligations
under
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the
Amended Agreement; or (ii) affect the rights of the J&J Releasors to
bring claims under or relating to the Amended Agreement, including
bringing claims to enforce their rights under the Amended
Agreement.
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3.
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NOTICES:
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a.
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Any
notice, demand, request, consent, approval or communication that
either
Party desires or is required to give to the other Party shall be
delivered
in accordance with Section 8.02 of the Amended
Agreement.
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4.
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MISCELLANEOUS
PROVISIONS:
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a.
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In
order to carry out the terms and conditions of this Settlement Agreement,
the Parties agree to promptly execute upon reasonable request any
and all
documents and instruments consistent herewith necessary to effectuate
the
terms of this Settlement Agreement.
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b.
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By
entering into this Settlement Agreement, no Party admits or acknowledges
that they committed any wrongdoing
whatsoever.
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c.
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This
Settlement Agreement shall be governed and construed in accordance
with
the laws of the State of New York applicable to agreements made and
to be
performed entirely within such State. The United States District
Court for
the Southern District of New York will have exclusive jurisdiction
over
any controversies regarding this Settlement Agreement; any action
or other
proceeding which involves such a controversy will be brought in those
courts and not elsewhere. Nothing in this Settlement Agreement is
intended
to confer on any person not a party hereto any rights or remedies
under
this Settlement Agreement.
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d.
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This
Settlement Agreement and the Amended Agreement (including the Exhibits
and
Schedules thereto) are the entire agreement between the Parties with
respect to the claims or subject matter of this Settlement Agreement
and
supersedes all prior and contemporaneous oral and written agreements
and
discussions pertaining to the claims or subject matter of this Settlement
Agreement. This Settlement Agreement may be amended only by a written
agreement executed by each of the Parties
hereto.
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e.
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No
breach of any provision hereof can be waived unless in writing. Waiver
of
any one breach of any provision hereof shall not be deemed to be
a waiver
of any other breach of the same or any other provision
hereof.
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f.
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This
Settlement Agreement shall be binding upon and inure to the benefit
of the
Parties hereto and each of their respective predecessors, successors,
assigns, affiliates, parents, partners, subsidiaries, divisions,
transferees, past and present officers, directors, agents,
representatives, attorneys and
employees.
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g.
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In
the event that any covenant, condition or other provision herein
contained
is held to be invalid, void or illegal by any court of competent
jurisdiction, the same shall be deemed severable from the remainder
of
this Settlement Agreement and shall in no way affect, impair or invalidate
any other covenant, condition or other provisions herein contained.
If
such condition, covenant or other provisions shall be deemed invalid
due
to its scope or breadth, such covenant, condition or other provision
shall
be deemed valid to the extent of the scope or breadth permitted by
law.
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h.
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The
Parties hereto, and each of them, represent and declare that in executing
this Settlement Agreement, they rely solely upon their own judgment,
belief and knowledge, and on the advice and recommendations of their
own
independently selected counsel, concerning the nature, extent and
duration
of their rights and claims and that they have not been influenced
to any
extent whatsoever in executing the same by any representations or
statements covering any matters made by any of the Parties hereto
or by
any person representing them or any of them. The Parties acknowledge
that
no Party hereto nor any of their representatives have made any promise,
representation or warranty whatsoever, written or oral, as any inducement
to enter into this Settlement Agreement, except as expressly set
forth in
this Settlement Agreement and the Amended
Agreement.
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i.
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The
Parties hereto, and each of them, further represent and warrant that
they
have carefully read this Settlement Agreement and know and understand
the
contents hereof, and that they signed this Settlement Agreement freely
and
voluntarily. Each of the representatives executing this Settlement
Agreement on behalf of their respective corporations is empowered
to do so
and thereby binds his respective corporation. The Parties hereto
acknowledge and agree that this Settlement Agreement shall be deemed
to
have been drafted jointly by all Parties
hereto.
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j.
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This
Settlement Agreement may be executed in counterparts and when each
Party
has signed and delivered at least one such counterpart to the other
Party,
each counterpart shall be deemed an original, and all counterparts
taken
together shall constitute one and the same agreement, which shall
be
binding and effective as to all Parties. This Settlement Agreement
may be
executed via facsimile signatures, which shall have the same force
and
effect as if they were original signatures to be followed by executed
originals
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GUIDANT
CORPORATION
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Dated:
November
14, 2005
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By:
/s/
Xxxxxx X. Xxxxxxx
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Title:
President
and Chief Executive Officer
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XXXXXXX
& XXXXXXX
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Dated:
November
14, 2005
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By:
/s/
Xxxxxx X. Xxxxxxxx
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Title:
Vice
Chairman and Chief Financial
Officer
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EXHIBIT
A
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UNITED
STATES DISTRICT COURT
SOUTHERN
DISTRICT OF NEW YORK
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GUIDANT
CORPORATION,
Plaintiff,
-against-
XXXXXXX
& XXXXXXX,
Defendant.
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05
Civ. 9404 (RJS)
STIPULATION
OF
DISMISSAL
WITH
PREJUDICE
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IT
IS
HEREBY STIPULATED AND AGREED by and between the undersigned attorneys of record
for the parties to the above-captioned action, pursuant to Fed. R. Civ. P.
41(a)(1)(ii), that the complaint in the above-captioned action be dismissed
with
prejudice and without costs to any party as against the other. This stipulation
may be filed without further notice.
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November
15, 2005
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SKADDEN,
ARPS, SLATE, XXXXXXX & XXXX LLP
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by
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/s/
XXXXX XXXX-XXXXX
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Xxxx
X. Xxxxxxxx (JG-8715)
Xxxxx
Xxxx-Xxxxx (CA-6865)
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Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
(212)
735-3000
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| Attorneys for Plaintiff | ||
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CRAVATH,
SWAINE & XXXXX LLP
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by
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/s/
XXXXXXX X. XXXXXXXX
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Xxxxxx
X. Xxxxx (RJ-6825)
Xxxxx
X. Xxxxxx (RW-8556)
Xxxxxxx
X. Xxxxxxxx (MR-0701)
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Worldwide
Plaza
000
Xxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
(212)
474-1000
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Attorneys
for Defendant
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