COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
This Compromise Settlement Agreement and Mutual Release (referred to
hereinafter as "Agreement" as defined herein) is made as of the 16th day of
November, 1998 (referred to hereinafter as the "Effective Date" as defined
herein), by and between The Independent Research Agency for Life Insurance, Inc.
(referred to hereinafter as "XXX," as defined herein), and Xxxxxxx X. Xxxxx XX,
Xxxxx X. Xxxxx and Xxxxx X. Xxxxx (referred to hereinafter as the "Other Xxxxx
Family Members," as defined herein) and Xxxxx Xxx Xxxxx.
WITNESSTH:
WHEREAS, XXX, the Other Xxxxx Family Members and Xxxxx Xxx Xxxxx are
parties to a civil action styled XXXXXXX X. XXXXX, XX, XXXXX X. XXXXX, XXXXX X.
XXXXX, AND THE INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC. V. XXXXX XXX
XXXXX, filed in the District Court of Tarrant County, Texas, 17th Judicial
District, assigned Cause No. 000-000000-00 (referred to hereinafter as "Lawsuit"
as defined herein);
WHEREAS, the Parties to this Agreement desire to resolve fully and finally
all of the matters in dispute between them; and
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 1
WHEREAS, the Parties to this Agreement desire to effect the release of the
Parties and additional individuals and entities set out herein, and to provide
the covenants not to xxx and indemnification set forth herein;
NOW, THEREFORE, for and in consideration of the premises, the mutual
promises, releases and agreements herein contained, and for other good and
valuable consideration, the Parties hereto do hereby agree as follows:
I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings and where the context so indicates or requires, each such defined term
stated in the singular includes the plural and each such defined term stated in
the plural includes the singular:
A. "Agreement" shall mean this settlement of the Lawsuit and the other
matters agreed to hereby.
B. "Class A Stock" shall mean the Class A Voting Common Stock, par value
$0.10 per share of XXX.
C. "Class B Stock" shall mean the Class B Non-Voting Common Stock, par
value $0.02 per share of XXX.
D. "Deferred Payment Agreement" shall mean IRA's contractual commitment
to Xxxxx Xxx Xxxxx pursuant to the terms of the agreement attached to this
Agreement and incorporated herein by reference as EXHIBIT "A".
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AND MUTUAL RELEASE PAGE 2
E. "Dismissal Motion and Order" shall mean the Joint Motion to Dismiss
with Prejudice and Agreed Order in the form of EXHIBIT "B" attached to this
Agreement.
F. "Effective Date" shall mean the date of execution of the Agreement,
November 16, 1998.
G. "First Command" shall mean First Command Financial Corporation.
H. "XXX" shall mean The Independent Research Agency for Life Insurance,
Inc., the corporate entity organized and existing under the laws of the State of
Texas and having its principal office in Fort Worth, Texas.
I. "XXX Affiliates" shall mean XXX, and each and every one of their
respective past, present and future parents, subsidiaries, divisions,
affiliates of every kind or nature, associated entities, principals,
officers, directors, employees, agents, attorneys, accountants, insurers,
successors, heirs, executors, administrators, trustees, beneficiaries,
descendants, and assigns, and any other person or entity claiming by,
through, or under any of the foregoing, and includes but is not limited to
United Service Planning Association, Inc., First Command, XXX Annuities,
Inc., Xxxxx X. Xxxxx, Xxxxx X. Xxxxxx, and Xxxxxx X. Xxxxx.
J. "XXX Released Parties" shall mean XXX and XXX Affiliates.
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AND MUTUAL RELEASE PAGE 3
K. "XXX Releasing Parties" shall mean XXX and XXX Affiliates.
L. "Lawsuit" shall mean the action entitled XXXXXXX X. XXXXX, XX, XXXXX
X. XXXXX, XXXXX X. XXXXX, AND THE INDEPENDENT RESEARCH AGENCY FOR LIFE
INSURANCE, INC. V. XXXXX XXX XXXXX, filed in the District Court of Tarrant
County, Texas, 17th Judicial District, on or about September 6, 1998, assigned
Cause No. 000-000000-00.
M. "Lawsuit Claims" shall mean any and all claims alleged directly or
indirectly by one or more of the Parties in the Lawsuit, or in connection
with the Lawsuit, including but not limited to claims of dissenter's and
appraisal rights, breach of fiduciary duty, specific performance of contract,
temporary and permanent injunctive relief, fraud, conspiracy, breach of
contract, anticipatory repudiation of contract, tortious interference with
contractual relationships, conversion, breach of good faith and fair dealing,
improper use of corporate forms as tools to carry out fraudulent and illegal
schemes, declaratory relief, constructive trust, self-dealing, extortion,
coercion, theft of corporate opportunities, conflict of interest,
misrepresentation, breach of duty of
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 4
loyalty and obedience, attorneys' fees, costs, out-of-pocket expenses, interest,
and punitive damages.
N. "MAP" shall mean the Mission Accomplishment Plan implemented by XXX
prior to the Proposed Merger.
O. "Merger Agreement" shall mean the Agreement and Plan of Merger, dated
as of July 1, 1998, as amended and restated as of October 30, 1998, between XXX
and First Command.
P. "Original Answer" shall mean the Original Answer Xxxxx Xxx Xxxxx filed
on October 22, 1998 in the Lawsuit.
Q. "Proxy" shall mean the Proxy Statement furnished to shareholders of
XXX dated October 30, 1998.
R. "Parties" shall mean XXX, the Other Xxxxx Family Members and Xxxxx Xxx
Xxxxx.
S. "Xxxxx Xxx Xxxxx Released Parties" shall mean Xxxxx Xxx Xxxxx and
each and every one of her respective past, present and future parents,
subsidiaries, divisions, affiliates of every kind or nature, associated
entities, principals, officers, directors, shareholders, employees, agents,
attorneys, accountants, insurers, successors, heirs, executors,
administrators, trustees, beneficiaries, descendants, and assigns, and any
other person or entity claiming by, through, or under any of the foregoing;
provided however, this definition expressly excludes the Other Xxxxx Family
Members.
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AND MUTUAL RELEASE PAGE 5
T. "Xxxxx Xxx Xxxxx Releasing Parties" shall mean Xxxxx Xxx Xxxxx and
each and every one of their respective past, present and future parents,
subsidiaries, divisions, affiliates of every kind or nature, associated
entities, principals, officers, directors, shareholders, employees,
agents, attorneys, accountants, insurers, successors, heirs, executors,
administrators, trustees, beneficiaries, descendants, and assigns, and any
other person or entity claiming by, through, or under any of the foregoing.
U. "Other Xxxxx Family Members" shall mean Xxxxxxx X. Xxxxx XX, Xxxxx X.
Xxxxx and Xxxxx X. Xxxxx.
V. "Other Xxxxx Family Members Released Parties" shall mean the Other
Xxxxx Family Members and each and every one of their respective past, present
and future parents, subsidiaries, divisions, affiliates of every kind or
nature, associated entities, principals, officers, directors, shareholders,
employees, agents, attorneys, accountants, insurers, successors,
heirs, executors, administrators, trustees, beneficiaries, descendants, and
assigns, and any other person or entity claiming by, through, or under any of
the foregoing; provided however, this definition expressly excludes Xxxxx Xxx
Xxxxx.
W. "Other Xxxxx Family Members Releasing Parties" shall mean the Other
Xxxxx Family Members and each and every one of their respective past, present
and future parents, subsidiaries, divisions, affiliates of every kind or
nature, associated entities, principals, officers, directors, shareholders,
employees, agents, attorneys, accountants, insurers, successors, heirs,
executors, administrators, trustees, beneficiaries, descendants, and assigns,
and any other person or entity claiming by, through, or under any of the
foregoing.
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X. "Proposed Merger" shall mean the proposed merger of XXX with and into
First Command pursuant to the Merger Agreement.
Y. "Released Claims" shall mean all manner of action, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, covenants, contracts, controversies, agreements, promises, damages,
expenses, claims, and demands whatsoever, existing on, or at any time prior
to, the Effective Date hereof, in law, in equity, or otherwise, whether now
known or hereafter discovered, whether suspected or unsuspected, that the
Xxxxx Xxx Xxxxx Releasing Parties, the XXX Releasing Parties, or the Other
Xxxxx Family Members Releasing Parties had, have, or may ever have upon or by
reason of any fact, matter, cause, occurrence, statement, omission, duty,
action, or failure to act, or anything whatsoever arising out of, involving,
regarding or relating to the relationship, dealings, or affairs between on
the one hand Xxxxx Xxx Xxxxx and on the other hand XXX, XXX Affiliates and/or
one or more of the Other Xxxxx Family Members, including, but not limited to,
all claims that were asserted or could have been asserted in the Lawsuit,
(including, without limitation, the Lawsuit Claims), and all claims arising
from or related to, directly or indirectly, (1) the facts, circumstances,
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AND MUTUAL RELEASE PAGE 7
allegations, and controversies related or giving rise to the Lawsuit, (2) the
Class A Stock, (3) the Class B Stock, (4) the MAP, (5) the Merger Agreement,
(6) the Proposed Merger, (7) the Stock Agreement, (8) the Schedule 13E-3 XXX
filed with the Securities and Exchange Commission ("SEC") on or about July 6,
1998, in connection with the Proposed Merger; (9) the Proxy, (10) all acts
and/or omissions prior to Effective Date relating in whole or in part in any
way to the control, ownership, operation, business, management, or formation
of XXX or XXX Affiliates, and (11) the settlement of the Lawsuit and/or the
negotiation and execution of this Agreement (including, without limitation,
all claims of fraudulent inducement, mistake, breach of fiduciary duty,
economic duress, and unfairness).
Z. "Settlement Amount" shall mean Four Million Eight Hundred thousand
U.S. Dollars ($4,800,000.00).
AA. "Stock Agreement" shall mean the Stock Purchase Agreement dated March
22, 1983, among XXX, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxx Xxx Xxxxx,
Xxxxxxx X. Xxxxx XX, and Xxxxx X. Xxxxx.
BB. "Wire Transfer Instructions" shall mean the wire transfer instructions
set out in EXHIBIT "C" to this Agreement.
II. RECITALS
SECTION 1. PAYMENT; SALE OF STOCK; DEFERRED PAYMENT AGREEMENT; DISMISSAL
OF THE LAWSUIT.
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1.1 SETTLEMENT AMOUNT. Contemporaneously with the execution hereof,
and pursuant to the Wire Transfer Instructions, XXX shall pay to Xxxxx Xxx
Xxxxx by wire transfer of immediately available funds, the Settlement Amount.
Receipt of such funds shall be deemed to have taken place when such funds
are received in the account set out in the Wire Transfer Instructions.
1.2 SALE OF STOCK. Contemporaneously with the execution hereof and the
Deferred Payment Agreement and receipt of payment described in Section 1.1
above, Xxxxx Xxx Xxxxx shall sell to, and deliver to, XXX all of her Class A
Stock, all of her Class B stock, all stock certificates duly endorsed in
blank, any and all of her other claims to stock ownership rights in XXX and
the documents evidencing such claims, as well as any and all other rights in
or claims to XXX, ownership or otherwise, she may have pursuant to the Stock
Agreement or any other agreement or document.
1.3 In exchange for the consideration as set forth in Section 1, Xxxxx
Xxx Xxxxx hereby releases (1) all rights related to her shares of Class A
Stock; (2) all rights related to her shares of Class B Stock; (3) any and all
of her rights under the Stock Agreement including but not limited to her
entitlement to buy the Class A Stock from the Other Xxxxx Family Members,
"anti-dilution" rights, right of first refusal, pre-emptive right, right to
own a minority by one share of the outstanding shares of Class A Stock, pro
rata option right with respect to voting stock owned by the Other Xxxxx
Family Members; (4) rights to receive dividends or distributions on her Class
A stock or on her Class B Stock; (5) her existing ownership interest in XXX;
(6) her rights to and interest in the Released Claims; and agrees to other
undertakings contained herein. This Agreement shall result in a complete
termination of Xxxxx Xxx Xxxxx'x interest in, and a complete redemption of,
all of her stock in XXX.
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1.4 DISMISSAL OF LAWSUIT. Contemporaneously with the execution hereof,
the Parties hereto shall execute the Dismissal Motion and Order. Counsel for
XXX, Xxxxxx Xxxxxxxxx, shall hold the original Dismissal Motion and Order in
trust until confirmation of the receipt of the Settlement Amount as set forth
in Section 1.1 and the delivery of documents as set forth in Section 1.2.
Upon confirmation of the receipt of the consideration as set out in Section
1.1, and the delivery of documents as set out in Section 1.2, Xxxxxx
Xxxxxxxxx shall file the Dismissal Motion and Order. All Parties and their
counsel shall use their best efforts to prosecute the Dismissal Motion and
Order and obtain entry of the said Order.
1.5 The Parties and their attorneys agree to cooperate to effectuate this
Agreement, including executing any and all additional or supplemental documents,
and taking all additional actions, which may be necessary or appropriate to give
full force and effect to and implement the terms and intent of this Agreement.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 10
1.6 DEFERRED PAYMENT AGREEMENT. In addition to the consideration
set forth in Section 1.1, XXX agrees to enter into and perform the Deferred
Payment Agreement.
SECTION 2. MUTUAL, GLOBAL RELEASES.
2.1. Effective upon receipt of the consideration as set out in Section
1, the Xxxxx Xxx Xxxxx Releasing Parties fully release, remise, and forever
discharge, and by these presents do fully release and forever discharge the
XXX Released Parties and the Other Xxxxx Family Members Released Parties,
jointly and severally, of and from all the Released Claims; provided,
however, that nothing in this Agreement is intended or shall be construed to
constitute a waiver, release, or covenant not to xxx regarding, or otherwise
limit any Party's rights under this Agreement.
2.2 Effective upon receipt of the consideration as set out in Section
1, the Xxxxx Xxx Xxxxx Releasing Parties covenant not to xxx the XXX Released
Parties or the Other Xxxxx Family Members Released Parties, or to instigate,
initiate, or pursue against the XXX Released Parties or the Other Xxxxx
Family Members Released Parties, in any manner of judicial or administrative
proceeding on their own behalf or on behalf of any of their respective heirs,
executors, administrators, descendants, successors, agents, representatives,
beneficiaries and assigns or any other person or entity regarding any or all
Released Claims; provided, however, that nothing in this Agreement is
intended or shall be
COMPROMISE SETTLEMENT AGREEMENT
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construed to constitute a waiver, release, or covenant not to xxx regarding,
or otherwise limit any Party's rights under this Agreement. In the event of
any breach of the foregoing covenant by Xxxxx Xxx Xxxxx, Xxxxx Xxx Xxxxx
agrees to indemnify and hold harmless the XXX Released Parties or the Other
Xxxxx Family Members Released Parties from any and all manner of action,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, controversies, agreements, promises,
damages, expenses, claims, and demands (including, but not limited to, future
costs and attorneys' fees) arising from or related to, directly or
indirectly any such breach, claim, or proceeding.
2.3 Effective upon the execution and delivery of documents as set out in
Section 1, the XXX Releasing Parties and the Other Xxxxx Family Members
Releasing Parties fully release, remise, and forever discharge, and by these
presents do fully release and forever discharge the Xxxxx Xxx Xxxxx Released
Parties, jointly and severally, of and from all of the Released Claims;
provided, however, that nothing in this Agreement is intended or shall be
construed to constitute a waiver, release, or covenant not to xxx regarding, or
otherwise limit any Party's rights under this Agreement.
2.4 Effective upon the execution and delivery of documents set out in
Section 1, the XXX Releasing Parties and the Other Xxxxx Family Members
Releasing Parties covenant not to xxx the Xxxxx Xxx Xxxxx Released Parties or to
instigate, initiate, or pursue against the Xxxxx Xxx Xxxxx Released Parties any
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manner of judicial or administrative proceeding on their own behalf or on behalf
of any of their respective heirs, executors, administrators, descendants,
successors, agents, representatives, beneficiaries and assigns or any other
person or entity regarding any or all the Released Claims; provided, however,
that nothing in this Agreement is intended or shall be construed to constitute a
waiver, release, or covenant not to xxx regarding, or otherwise limit any
Party's rights under this Agreement.
In the event of any breach of the foregoing covenant by XXX or XXX
Affiliates, XXX and the XXX Affiliates agree to indemnify and hold harmless
the Xxxxx Xxx Xxxxx Released Parties from any and all manner of action,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, controversies, agreements, promises,
damages, expenses, claims, and demands (including, but not limited to, future
costs and attorneys' fees) arising from or related to, directly or indirectly
any such breach, claim, or proceeding.
In the event of any breach of the foregoing covenant by the Other Xxxxx
Family Members, the Other Xxxxx Family Members agree to indemnify and hold
harmless the Xxxxx Xxx Xxxxx Released Parties from any and all manner of action,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, controversies, agreements, promises,
damages, expenses, claims, and demands (including, but not limited to, future
costs and
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 13
attorneys' fees) arising from or related to, directly or indirectly any such
breach, claim, or proceeding.
2.5 The Parties acknowledge that they have carefully read this Agreement,
that they fully understand its terms and import, and that they voluntarily
consent to it as a full and fair discharge of all of the claims of the XXX
Releasing Parties, the Other Xxxxx Family Members Releasing Party, and the Xxxxx
Xxx Xxxxx Releasing Parties, respectively; provided, however, that nothing in
this Agreement is intended or shall be construed to constitute a waiver,
release, or covenant not to xxx regarding, or otherwise limit any Party's rights
under this Agreement. The Parties also acknowledge that certain states may have
laws, statutes and common law rulings which relate to a general release and the
effect thereof. Without acknowledging whether such laws apply to this Agreement
(and specifically acknowledging and agreeing that Texas law shall govern this
Agreement), the Parties further acknowledge that they are aware that they may
hereafter discover material facts in addition to or different from those that
they now know or believe to be true with respect to the subject matter of this
Agreement, but that it is their intention to settle and release any and all
claims, disputes, or differences referred to above, whether known or unknown,
suspected or unsuspected, fully, finally, and forever. Accordingly, each of the
Parties expressly waives any and all rights each may have under any state's
laws, statutes, regulations, or common law principles relating to or arising out
of a
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 14
general release and the effect thereof which would limit, impair, or eliminate
the effectiveness of the releases provided herein. The Parties acknowledge
that they assume the risk of any mistake of fact or law with regard to all
aspects of this Agreement and any asserted rights released hereby.
SECTION 3. COVENANTS, REPRESENTATIONS, AND WARRANTIES.
3.1 Xxxxx Xxx Xxxxx hereby severally covenants, represents, and warrants
to XXX and the Other Xxxxx Family Members as follows:
(a) Xxxxx Xxx Xxxxx is correctly described and named in this
Agreement.
(b) Before executing this Agreement, Xxxxx Xxx Xxxxx became fully
informed of the terms, contents, provisions, and effect of this Agreement
and the attached exhibits.
(c) The signatory to this Agreement signing on behalf of Xxxxx Xxx
Xxxxx is fully authorized and legally competent to execute this Agreement
as the legal, valid, and binding act and deed of Xxxxx Xxx Xxxxx, and is a
duly authorized representative of such Party.
(d) This Agreement is fully and forever binding on, and enforceable
against, each of the Xxxxx Xxx Xxxxx Releasing Parties in accordance with
its terms.
(e) The execution and delivery of this Agreement and any other
documents, agreements, or instruments executed or delivered by Xxxxx Xxx
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AND MUTUAL RELEASE PAGE 15
Xxxxx pursuant hereto and the consummation of the transactions herein or
therein contemplated does not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any material
agreement or instrument to which Xxxxx Xxx Xxxxx is a party or any
provision of law, statute, rule, or regulation applicable to Xxxxx Xxx
Xxxxx or any judicial or administrative order or decree by which Xxxxx Xxx
Xxxxx is bound.
(f) The Xxxxx Xxx Xxxxx Releasing Parties own the Released Claims
claimed by or attributable to them, and they are free and clear of any and
all claims, liens, or other encumbrances of any kind or nature, of any
other person, and there is no other person who could or should have
asserted such claims or joined in any settlement or compromise of such
claims.
(g) The Xxxxx Xxx Xxxxx Releasing Parties have not assigned, pledged,
or in any other manner sold, transferred, or hypothecated the Released
Claims.
(h) In entering into and signing this Agreement, Xxxxx Xxx Xxxxx has
had the benefit of the advice of attorneys of her own choosing, and enters
into this Agreement freely by her own choosing and judgment, and without
duress or other influence.
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(i) Xxxxx Xxx Xxxxx agrees that the negotiations and execution of
this Agreement have been at arm's length and that she is not relying on any
purported duty to her from any of the XXX Released Parties or the Other
Xxxxx Family Members Released Parties in any manner whatsoever, in
connection with this Agreement.
(j) Xxxxx Xxx Xxxxx has made an investigation to her satisfaction of
all facts and reasons why she should enter into this Agreement and agrees,
based upon her knowledge, experience, and investigation.
(k) Xxxxx Xxx Xxxxx represents that she has not relied upon, and will
not rely upon any statements, acts, or omissions by any of the XXX Released
Parties or the Other Xxxxx Family Members Released Parties, other than as
set forth in this Agreement, in making her decision to enter into this
Agreement.
(l) This Agreement is duly executed by Xxxxx Xxx Xxxxx with full
knowledge and understanding of its terms and meaning, on her own judgment
and upon the advice of her attorneys and financial and tax advisors.
Specifically, Xxxxx Xxx Xxxxx has consulted with her legal, financial, and
tax advisors, and she recognizes that the payment of the Settlement Amount
may result in tax liability for her for which she will be solely
responsible.
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(m) This Agreement is not and shall not be construed as an admission
of wrongdoing or liability by any Party, any of which wrongdoing or
liability is and has been specifically denied by each Party. It is
expressly understood and agreed that the terms of this Agreement are
contractual and not merely recitals, and that the agreements contained
herein and the consideration transferred is intended to compromise doubtful
and disputed claims, avoid and terminate litigation, and buy peace, and
that no payments made and no release or other consideration given by any
Party shall be construed as an admission of wrongdoing or liability by any
Party, all wrongdoing or liability being expressly denied by each Party.
(n) Xxxxx Xxx Xxxxx acknowledges that her aforesaid representations
are a material inducement to every other Party to enter into this
Agreement.
3.2 XXX and the XXX Affiliates hereby severally covenant, represent, and
warrant to Xxxxx Xxx Xxxxx and the Other Xxxxx Family Members as follows:
(a) XXX and XXX Affiliates are correctly described and named in this
Agreement.
(b) Before executing this Agreement, XXX and XXX Affiliates became
fully informed of the terms, contents, provisions, and effect of this
Agreement and the attached exhibits.
(c) The signatory to this Agreement signing on behalf of XXX and XXX
Affiliates is fully authorized and legally competent to execute this
Agreement as the legal, valid, and binding act and deed of XXX and XXX
Affiliates, and is a duly authorized representative of XXX and XXX
Affiliates.
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(d) This Agreement is fully and forever binding on, and enforceable
against, each of the XXX Releasing Parties in accordance with its terms.
(e) The execution and delivery of this Agreement and any other
documents, agreements or instruments executed or delivered by XXX pursuant
hereto and the consummation of the transactions herein or therein
contemplated does not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any material
agreement or instrument to which XXX or XXX Affiliates are a party or any
provision of law, statute, rule, or regulation applicable to such Party or
any judicial or administrative order or decree by which XXX and XXX
Affiliates are bound.
(f) The signatory for XXX and the XXX Affiliates fully informed all
appropriate directors, officers, beneficiaries, and representatives of or
persons having an interest in or relationship with XXX or XXX Affiliates of
the terms, contents, provisions, and effect of this Agreement; and the
execution and delivery of this Agreement by the signatory for XXX has been
duly authorized and approved by the beneficiaries, board of directors,
partners, or other persons, if any, whose authorization or approval is
required or necessary to authorize execution and delivery of this Agreement
by such signatory as the binding act and deed of XXX and XXX Affiliates.
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(g) XXX and the XXX Releasing Parties own the Released Claims claimed
by or attributable to them, and they are free and clear of any and all
claims, liens, or other encumbrances of any kind or nature, of any other
person, and there is no other person who could or should have asserted such
claims or joined in any settlement or compromise of such claims.
(h) XXX and the XXX Releasing Parties have not assigned, pledged, or
in any other manner sold, transferred, or hypothecated any of the Released
Claims.
(i) In entering into and signing this Agreement, XXX and XXX
Affiliates have had the benefit of the advice of attorneys of their own
choosing, and enter into this Agreement freely by their own choosing and
judgment, and without duress or other influence.
(j) XXX and XXX Affiliates agree that the negotiations and execution
of this Agreement have been at arm's length and that they are not relying
on any purported duty to them from any of the Xxxxx Xxx Xxxxx Released
Parties or the Other Xxxxx Family Members Released Parties in any manner
whatsoever, in connection with this Agreement.
(k) XXX and XXX Affiliates have made an investigation to their
satisfaction of all facts and reasons why XXX and XXX Affiliates should
enter into this Agreement and agree, based upon their knowledge,
experience, and investigation.
(l) XXX and XXX Affiliates represent that they have not relied upon,
and will not rely upon, any statements, acts or omissions by any of the
Xxxxx Xxx Xxxxx Released Parties or the Other Xxxxx Family Members
Released Parties, other than as set forth in this Agreement, in making
their decision to enter into this Agreement.
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(m) This Agreement is duly executed by XXX with full knowledge and
understanding of its terms and meaning, on IRA's own judgment and upon the
advice of IRA's attorneys and financial and tax advisors, and XXX
recognizes that it is solely responsible for any tax consequences to it as
a result of this Agreement.
(n) This Agreement is not and shall not be construed as an admission
of wrongdoing or liability by any Party, any which wrongdoing or liability
is and has been specifically denied by each Party. It is expressly
understood and agreed that the terms of this Agreement are contractual and
not merely recitals, and that the agreements contained herein and the
consideration transferred is intended to compromise doubtful and disputed
claims, avoid and terminate litigation, and buy peace, and that no payments
made and no release or other consideration given by any Party shall be
construed as an admission of wrongdoing or liability by any Party, all
wrongdoing or liability being expressly denied by each Party.
(o) XXX and the XXX Affiliates acknowledge that their aforesaid
representations are a material inducement to every other Party to enter
into this Agreement.
3.3 The Other Xxxxx Family Members hereby severally covenant, represent,
and warrant to XXX and Xxxxx Xxx Xxxxx as follows:
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(a) Each of the Other Xxxxx Family Members is correctly described and
named in this Agreement.
(b) Before executing this Agreement, each of the Other Xxxxx Family
Members became fully informed of the terms, contents, provisions, and
effect of this Agreement and the attached exhibits.
(c) The signatories to this Agreement signing on behalf of each of
the Other Xxxxx Family Members is fully authorized and legally competent to
execute this Agreement as the legal, valid, and binding act and deed of
each of the Other Xxxxx Family Members, and is a duly authorized
representative of such Party.
(d) This Agreement is fully and forever binding on, and enforceable
against, each of the Other Xxxxx Family Members Releasing Parties in
accordance with its terms.
(e) The execution and delivery of this Agreement and any other
documents, agreements or instruments executed or delivered by each of the
Other Xxxxx Family Members pursuant hereto and the consummation of the
transactions herein or therein contemplated does not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material agreement or instrument to which each of the
Other Xxxxx Family Members is a party or any provision of law, statute,
rule, or regulation applicable to such Party or any judicial or
administrative
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order or decree by which each of the Other Xxxxx Family Members is bound.
(f) The Other Xxxxx Family Members own the Released Claims claimed by
or attributable to the Other Xxxxx Family Members, and they are free and
clear of any and all claims, liens, or other encumbrances of any kind or
nature, of any other person, and there is no other person who could or
should have asserted such claims or joined in any settlement or compromise
of such claims.
(g) Each of the Other Xxxxx Family Members has not assigned, pledged,
or in any other manner sold, transferred, or hypothecated any of the
Released Claims.
(h) In entering into and signing this Agreement, each of the Other
Xxxxx Family Members has had the benefit of the advice of attorneys of each
of the Other Xxxxx Family Members' own choosing, and enters into this
Agreement freely by each of the Other Xxxxx Family Members' own choosing
and judgment, and without duress or other influence.
(i) Each of the Other Xxxxx Family Members agrees that the
negotiations and execution of this Agreement have been at arm's length and
that they are not relying on any purported duty to them from any of the
Xxxxx Xxx Xxxxx Released Parties or the XXX Released Parties in any manner
whatsoever, in connection with this Agreement.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 23
(j) Each of the Other Xxxxx Family Members has made an investigation
to each of the Other Xxxxx Family Members' satisfaction of all facts and
reasons why each of the Other Xxxxx Family Members should enter into this
Agreement and agrees, based upon each of the Other Xxxxx Family Members'
knowledge, experience, and investigation.
(k) Each of the Other Xxxxx Family Members represents that he or she
has not relied upon, and will not rely upon, any statements, acts or
omissions by any of the Xxxxx Xxx Xxxxx Released Parties, other than as set
forth in this Agreement, in making its decision to enter into this
Agreement.
(l) This Agreement is duly executed by each of the Other Xxxxx Family
Members with full knowledge and understanding of its terms and meaning, on
each of the Other Xxxxx Family Members' own judgment and upon the advice of
each of the Other Xxxxx Family Members' attorneys and financial and tax
advisors.
(m) This Agreement is not and shall not be construed as an admission
of wrongdoing or liability by any Party, any which wrongdoing or liability
is and has been specifically denied by each Party. It is expressly
understood and agreed that the terms of this Agreement are contractual and
not merely recitals, and that the agreements contained herein and the
consideration transferred is intended to compromise doubtful and disputed
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 24
claims, avoid and terminate litigation, and buy peace, and that no payments
made and no release or other consideration given by any Party shall be
construed as an admission of wrongdoing or liability by any Party, all
wrongdoing or liability being expressly denied by each Party.
(n) Each of the Other Xxxxx Family Members acknowledges that its
aforesaid representations are a material inducement to every other Party to
enter into this Agreement.
3.4 Nothing in this Agreement shall, or shall be construed to, limit
any Parties' rights with respect to claims initiated by or against the
Internal Revenue Service or any other taxing authorities (including without
limitation any state or local agency).
3.5 As attested by the signatures of each Party and the signatures of the
attorneys for each Party, this Agreement was fully explained to each Party by
such Party's attorneys before such Party signed the Agreement, and each attorney
attests that the Party he represents has acknowledged that such party fully
understands the terms and the legal consequences of the Agreement and
understands that the Party's release in Section 2 shall operate as a full,
complete, and final release and settlement of any and all claims released in
Section 2.
SECTION 4. CONFIDENTIALITY.
4.1 The Parties shall not disclose to others any confidential or
proprietary information belonging to another Party, except as may be
specifically authorized in writing in advance of such disclosure by the Party
from whom the authorization is sought, or in the event authorization is sought
from XXX, by an officer of XXX. The confidential or proprietary information
in this context includes but is not limited to XXX or its subsidiaries'
client lists, business plans, product offerings, product pricing, investment
performance, and agent compensation materials.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 25
SECTION 5. NOTICES.
5.1 All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been given
upon receipt by the persons designated below at the following addresses or
facsimile numbers or to such other address or facsimile number as any Party
hereto may specify by notice in writing, via certified mail, return receipt
requested, to the other Parties (and their attorneys named below) hereto:
If to XXX: Xxxxx X. Xxxxx
THE INDEPENDENT RESEARCH AGENCY
FOR LIFE INSURANCE, INC.
0000 Xxxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Telecopy: (000) 000-0000 Ext. 2200
Xxxxxx X. Xxxxxxxxx
XXXXXX AND XXXXX, L.L.P.
0000 XxxxxxxXxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
If to the Other Xxxxx Family Members:
Xxxxxxx X. Xxxxx XX
X.X. Xxx 00000
Xxxx Xxxxx, Xxxxx 00000-0000
Telecopier: (000) 000-0000
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 26
Xxx X. Xxxxxxxx
MICHENER, LARIMORE, SWINDLE,
WHITAKER, FLOWERS, SAWYER,
XXXXXXXX & CHALK, L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Facsimile: (000)000-0000
If to Xxxxx Xxx Xxxxx:
Xxxxx Xxx Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile (000) 000-0000
Xxxxxx Xxxxx
XxXxxx Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile (000) 000-0000
SECTION 6. MISCELLANEOUS.
6.1 FULL SATISFACTION. The Xxxxx Xxx Xxxxx Releasing Parties understand
and agree that the consideration herein is being paid and provided in full
satisfaction of all of Released Claims claimed by or attributable to Xxxxx
Xxx Xxxxx and all claimed damages arising out of and relating to Released
Claims claimed by or attributable to Xxxxx Xxx Xxxxx, and that the Xxxxx Xxx
Xxxxx Releasing Parties, except as set forth herein, will receive no further
consideration for legal fees, costs, expenses, taxes, or for any other
purpose from the XXX Released Parties or the Other Xxxxx Family Members
Released Parties, arising out of, or relating to, the Released Claims.
6.2 NO ADMISSION. The Parties to this Agreement understand that this
Agreement is a compromise of disputed claims and that payment is not to be
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 27
construed as an admission of liability on the part of any Party hereto, each of
whom expressly denies liability.
6.3 AMENDMENTS. Neither this Agreement nor any term hereof may be
changed, waived, discharged, or terminated orally, but only by written agreement
signed by all of the Parties hereto.
6.4 HEADINGS. The headings of the sections and the sub-sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 28
6.5 APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas, without regard to conflict of
laws principles.
6.6 ENTIRE AGREEMENT. THIS AGREEMENT (INCLUDING EXHIBITS) CONSTITUTES THE
ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDES ANY PRIOR AGREEMENTS, UNDERSTANDINGS, CONDITIONS, REPRESENTATIONS
OR WARRANTIES, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER
HEREOF, AND THE TERMS OF THIS AGREEMENT ARE CONTRACTUAL AND NOT MERE RECITALS.
The Parties further agree not to seek to introduce other writings or parol
evidence to contradict the terms hereof.
6.7 SURVIVABILITY AND SEVERABILITY. The agreements, representations, and
warranties set forth in this Agreement shall survive the execution hereof. If
any term or provision of this Agreement shall be held to be invalid or
unenforceable for any reason, such term or provision shall be ineffective to the
extent of such invalidity or unenforceability without invalidating the remaining
terms and provisions hereof, and this Agreement shall be construed as if such
invalid or unenforceable term or provision had not been contained herein,
provided, however, that the foregoing shall in no way be interpreted or
construed to affect the enforceability of the release, covenant not to xxx,
and/or indemnification provisions of this Agreement upon payment of the
Settlement Amount.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 29
6.8 VALID AGREEMENT. This Agreement has been duly authorized and
constitutes a legal, valid, and binding obligation and is enforceable in
accordance with its terms.
6.9 EXPENSES. XXX will pay legal fees, costs and expenses of the
Parties; provided however that it shall pay such fees, costs and expenses of
Xxxxx Xxx Xxxxx in an amount not to exceed One Million Three Hundred Thousand
U.S. Dollars ($1,300,000.00) by transfer of immediately available funds
pursuant to the Wire Transfer Instruction.
6.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall be deemed one and the same instrument. No Party to this
Agreement shall be bound hereby until a counterpart of this Agreement has been
executed by every Party hereto. It shall not be necessary for each Party to
execute the same counterpart, but each Party hereto shall receive one or more
counterparts signed by all other Parties hereto.
6.11 PRONOUNS, GENDER. Pronouns, wherever used herein, and of whatever
gender, shall include natural persons, corporations, associations, partnerships,
and all other entities of every kind and character, and the singular shall
include the plural whenever and as often as is appropriate.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 30
6.12 EXHIBITS. The three (3) exhibits referred to in this Agreement are
attached and are incorporated into this Agreement by reference as fully set
forth herein.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
November 16, 1998.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 31
/s/ Xxx X. Xxxxxxxx
-----------------------------
Xxx X. Xxxxxxxx
State Bar No. 11950000
MICHENER, LARIMORE, SWINDLE,
WHITAKER, FLOWERS, SAWYER,
XXXXXXXX & CHALK, L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Telephone: 817/000-0000
Telecopier: 817/335-6935
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx
State Bar No. 07472500
XXXXXXXX, YOUNG & XXXXX, P.C.
000 Xxxxxxxxxxxx, 00xx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
Telephone: 817/000-0000
Telecopier: 817/334-0401
/s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx
Xxxxx Xxx Xx. 00000000
XXXX XXXXX XXXXXXXX XXXXXXX
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Telephone: 817/000-0000
Telecopier: 817/338-9109
ATTORNEYS FOR XXXXXXX X.
XXXXX, XX, XXXXX X. XXXXX AND
XXXXX X. XXXXX
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 00
/x/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxxx
State Bar No. 02867000
XXXXXX AND XXXXX, L.L.P.
0000 XxxxxxxXxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
/s/ Xx Xxxxxxxxxx
-----------------------------
Xx Xxxxxxxxxx
State Bar No. 10148300
LAW SNAKARD & XXXXXXX, P.C.
000 Xxxxxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Telephone: 817/000-0000
Telecopier: 817/332-7473
ATTORNEYS FOR THE
INDEPENDENT RESEARCH
AGENCY FOR LIFE INSURANCE,
INC.
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 33
/s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
State Bar No. 06522600
XxXXXX XXXXX, P.C.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxxxxx X. Xxxxxx
Xxxxx Xxx Xx. 00000000
XXXXX, XXXX & XXXXXXX
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
ATTORNEYS FOR XXXXX XXX XXXXX
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 34
THE INDEPENDENT RESEARCH AGENCY FOR LIFE
INSURANCE, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx.
Chairman of the Board
STATE OF TEXAS Section
Section
COUNTY OF TARRANT Section
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX
X. XXXXX, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he has read the foregoing Compromise
Settlement Agreement and Mutual Release, fully understood the same, and that he
executed it as an act of The Independent Research Agency for Life Insurance,
Inc., knowingly and voluntarily for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 16th day of November, 1998.
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public in and for
The State of Texas
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 35
/s/ XXXXX XXX XXXXX
-----------------------------
Xxxxx Xxx Xxxxx
STATE OF TEXAS Section
Section
COUNTY OF TARRANT Section
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX
XXX XXXXX, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she has read the foregoing
Compromise Settlement Agreement and Mutual Release, fully understood the same,
and that she executed it knowingly and voluntarily for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 16th day of November, 1998.
/s/ Xxxxx Xxxxx
-----------------------------
Notary Public in and for
The State of Texas
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 36
/s/ XXXXXXX X. XXXXX XX
-----------------------------
Xxxxxxx X. Xxxxx XX
STATE OF TEXAS Section
Section
COUNTY OF TARRANT Section
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXXX X. XXXXX XX., known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he has read the foregoing
Compromise Settlement Agreement and Mutual Release, fully understood the same,
and that he executed it knowingly and voluntarily for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 16th day of November, 1998.
/s/ Xxxxxx X. Xxxxx
-----------------------------
Notary Public in and for
The State of Texas
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 37
/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
STATE OF TEXAS Section
Section
COUNTY OF TARRANT Section
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX
X. XXXXX, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that she has read the foregoing Compromise
Settlement Agreement and Mutual Release, fully understood the same, and that she
executed it knowingly and voluntarily for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 16th day of November, 1998.
/s/ Xxxxxx X. Xxxxx
-----------------------------
Notary Public in and for
The State of Texas
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 38
/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
COMMONWEALTH OF
MASSACHUSETTS Section
Section
COUNTY OF NORFOLK Section
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX
X. XXXXX, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that she has read the foregoing Compromise
Settlement Agreement and Mutual Release, fully understood the same, and that she
executed it knowingly and voluntarily for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 16th day of November, 1998.
/s/ Xxxxx X. Yercia
---------------------------------
Notary Public in and for
The Commonwealth of Massachusetts
COMPROMISE SETTLEMENT AGREEMENT
AND MUTUAL RELEASE PAGE 39
