Exhibit 10.72
CAUSE NO. 97-00107
------------------
RICE PARTNERS II, L.P., (S) IN THE DISTRICT COURT
Plaintiff, (S)
(S)
vs. (S) OF DALLAS COUNTY, TEXAS
(S)
POLYPHASE CORPORATION, (S)
Defendant, (S)
(S) 101ST JUDICIAL DISTRICT
COMPROMISE SETTLEMENT AGREEMENT
-------------------------------
WITH MUTUAL RELEASE
-------------------
THIS COMPROMISE SETTLEMENT AGREEMENT WITH MUTUAL RELEASE (hereinafter
"Agreement") is entered into by and between POLYPHASE CORPORATION (hereinafter
referred to as POLYPHASE), OVERHILL FARMS, INC. (hereinafter referred to as
"OVERHILL"), PLY STADIUM PARTNERS, INC. (hereinafter referred to as "PLY"), XXXX
XXXXXX, Individually (hereinafter referred to as "XXXXXX"), and RICE PARTNERS
II, L.P. (hereinafter referred to as "RICE"), effective as of this 26th day of
November 1997.
WHEREAS, Plaintiff Rice filed the above-captioned lawsuit against Defendant
POLYPHASE on or about January 6, 1997, and has asserted various claims against
POLYPHASE; and
WHEREAS, Plaintiff RICE filed an amended petition on or about the 21st day
of July 1997, naming and adding XXXXXX as a party to the above styled and
numbered lawsuit; and
WHEREAS, Plaintiff RICE filed an amended petition on or about the 21st day
of July 1997, naming and adding PLY STADIUM PARTNERS, INC. (hereinafter referred
to as "PLY"), as a party to the above styled and numbered lawsuit; and
WHEREAS, OVERHILL, although not a party to the above styled and numbered
lawsuit, has an interest in the subject of such litigation; and
Compromise and Settlement Agreement with Mutual Release - Page 1
WHEREAS, it is the desire of Plaintiff RICE, Defendants POLYPHASE, PLY and
XXXXXX to settle this lawsuit, to terminate the litigation, to buy peace and to
avoid and preclude future litigation between any or all of them; and
WHEREAS, it is understood by Plaintiff RICE, Defendants POLYPHASE, PLY and
XXXXXX that this settlement agreement and release is only for the purpose of the
settlement and compromise of disputed claims and that the execution of this
agreement is not to be construed or considered as an admission of liability or
fault on the part of any party to this agreement. It is further understood and
agreed that Defendants POLYPHASE, PLY and XXXXXX deny liability on any and all
claims which have been asserted or which could be asserted by Plaintiff RICE
against said Defendants in this litigation and that the parties are entering
into this agreement merely to settle and terminate the litigation as between
them and to avoid and preclude future litigation; and
WHEREAS, Plaintiff RICE, Defendants POLYPHASE, PLY and XXXXXX declare and
represent to one another that they are executing this agreement wholly of their
own volition, judgment, belief and knowledge, after discussion with their
respective attorneys and with having full opportunity to review this agreement
and receive advice from their respective attorneys and that this agreement is
made without reliance upon any statement or representation of any other party or
any other person and further declare and represent that no promise, inducement
or agreement not herein expressed has been made to them and that this agreement
reflects the entire agreement and understanding between Plaintiff RICE, and
Defendants POLYPHASE, PLY and XXXXXX and that the terms of this agreement are
contractual and not merely recitals.
NOW, THEREFORE, for and in consideration of this compromise and settlement
of the litigation and the mutual promises, agreements and releases herein
contained, the receipt and sufficiency of such consideration is hereby
acknowledged and confessed it is hereby stipulated and agreed by and between
Plaintiff RICE and Defendants POLYPHASE, PLY and XXXXXX as follows:
Compromise and Settlement Agreement with Mutual Release - Page 2
-------------------------------------------------------
1. Upon the payment of the sums listed in paragraph 2 following
immediately hereinbelow, Plaintiff RICE will move the 000xx Xxxxxxxx Xxxxxxxx
Xxxxx xx Xxxxxx Xxxxxx, Xxxxx to dismiss the claims made by Plaintiff RICE
against Defendants POLYPHASE, PLY and XXXXXX in this litigation with prejudice
to the refiling of the same. Defendant POLYPHASE will move the 000xx Xxxxxxxx
Xxxxxxxx Xxxxx xx Xxxxxx Xxxxxx, Xxxxx to dismiss the claims made by Defendant
POLYPHASE against Plaintiff RICE in this litigation with prejudice to the
refiling of the same. Plaintiff RICE and Defendants POLYPHASE, PLY and XXXXXX
agree, and the order of dismissal shall recite, that each party to the
litigation shall pay its own costs, expenses and attorney's fees or any other
obligation resulting from the prosecution by Plaintiff RICE of the litigation or
the defense by Defendants POLYPHASE, PLY and XXXXXX of the litigation.
2. For and in further consideration of the mutual premises herein
contained, OVERHILL agrees to pay to RICE, in full and final settlement of all
amounts due and owing to RICE, pursuant to that certain Note Purchase Agreement
dated May 5, 1995, the following amounts:
Principal Balance: $13,000,000.00
All Accrued Interest through December 5, 1997 357,500.03
Reimbursable Expenses 5,447.62
Additionally, OVERHILL, in full and final consideration for the outstanding
warrant issued to RICE in connection with the above-stated Note Purchase
Agreement, agrees to pay to RICE the amount of $1,948,000 in cash.
As further consideration of the mutual premises herein contained, POLYPHASE
agrees to pay to Rice and/or its counsel, Xxxxxx and Xxxx, the sum of $100,000.
3. Additionally, and as further consideration of the mutual premises
herein contained POLYPHASE agrees to pay to Rice Partners, the sum of $2,000,000
if POLYPHASE sells its subsidiary, OVERHILL on or before the expiration of 180
days from the date of payment of the
Compromise and Settlement Agreement with Mutual Release - Page 3
-------------------------------------------------------
amount specified in paragraph 2 hereinabove ("Payment Date"). If POLYPHASE sells
OVERHILL subsequent to 180 days from the Payment Date, but on or before 365 days
from the Payment Date, POLYPHASE will pay Rice Partners the sum of $750,000. If
POLYPHASE sells OVERHILL subsequent to 180 days from the Payment Date, but on or
before 365 days from the Payment Date that results to either of S V Capital
Management, Inc., ConAgra, Inc. or Xxxxxx Farms, POLYPHASE will pay Rice
Partners the sum of $2,000,000 in lieu of the $750,000 amount stated
hereinabove.
4. Save and except solely for the obligations created by this Settlement
Agreement, Plaintiff RICE, for and on behalf of itself, its heirs, executors,
administrators, representatives, agents, servants, employees, officers,
directors, shareholders, attorneys, partners, parent corporation, subsidiaries,
venturers, successors and assigns, those in privity, or anyone claiming by,
through and under them, respectively, do hereby release, acquit and forever
discharge Defendant POLYPHASE, Defendant PLY, Defendant XXXXXX and OVERHILL,
their heirs, executors, administrators, representatives, agents, servants,
employees, officers, directors, shareholders, parent corporation, subsidiaries,
partners, attorneys, successors and assigns, those in privity, or anyone
claiming by, through and under them, from any and all claims and causes of
action of any kind or character, known or unknown, which Plaintiff RICE now has,
has had or may have in the future against Defendant POLYPHASE, Defendant PLY,
Defendant XXXXXX and/or OVERHILL, including, but not limited to, all claims and
causes of action that have been brought in this litigation or which could have
been brought by Plaintiff RICE against POLYPHASE, PLY, XXXXXX and/or OVERHILL in
this litigation, and any claims or causes of action stemming from any and all
communications, representations, promises, agreements, contracts, dealings,
transactions or other acts or omissions of every kind and character whatever in
any way connected with or arising out of the loan agreement and/or
lender/borrower relationship entered into by and between Plaintiff RICE,
Defendant POLYPHASE, Defendant PLY, Defendant XXXXXX and/or OVERHILL, including
claims of costs, expenses and attorney's fees.
Compromise and Settlement Agreement with Mutual Release - Page 4
-------------------------------------------------------
5. Save and except solely for the obligations created by this Agreement,
Defendants POLYPHASE, PLY, XXXXXX, and/or OVERHILL for and on behalf of
themselves, their heirs, executors, administrators, representatives, agents,
servants, employees, officers, directors, shareholders, attorneys, partners,
parent corporation, subsidiaries, venturers, successors and assigns, those in
privity, or anyone claiming by, through and under them, respectively, do hereby
release, acquit and forever discharge Plaintiff RICE, its heirs, executors,
administrators, representatives, agents, servants, employees, officers,
directors, shareholders, attorneys, partners, parent corporation, subsidiaries,
venturers, successors and assigns, those in privity, or anyone claiming by,
through and under them, from any and all claims and causes of action of any kind
or character, known or unknown, which Defendants POLYPHASE, PLY, XXXXXX and/or
OVERHILL now have, have had or may have in the future against Plaintiff RICE,
including, but not limited to, all claims and causes of action that have been
brought in this litigation or which could have been brought by Defendants
POLYPHASE, PLY, XXXXXX and/or OVERHILL in this litigation, any and all claims
and causes of action stemming from any and all communications, representations,
promises, agreements, contracts, dealings, transactions or other acts or
omissions of every kind and character whatever in any way connected with or
arising out of the loan agreement and/or lender/borrower relationship entered
into by and between Plaintiff RICE, Defendant POLYPHASE, Defendant PLY,
Defendant XXXXXX and/or OVERHILL, including claims of costs, expenses and
attorney's fees.
6. The general releases given in this Agreement by Plaintiff RICE to
Defendant POLYPHASE, Defendant PLY, Defendant XXXXXX and OVERHILL and by
Defendant POLYPHASE, Defendant PLY, Defendant XXXXXX and OVERHILL to Plaintiff
RICE, are intended by the parties to cover all claims of all types, whether
arising under common law or under the statutes and regulations of any state or
of the United States or any foreign country. This is to be construed as the
broadest possible type general release, releasing, without limitation,
antitrust, breach
Compromise and Settlement Agreement with Mutual Release - Page 5
-------------------------------------------------------
of contract, commission, compensation, deceit, fraud, negligence,
misrepresentation, slander, tort, trespass, harassment, and claims pursuant to
any Texas statute and all amendments and supplements thereto or any and all
other claims.
7. This Agreement constitutes the entire understanding and agreement of
the parties hereto, and supersedes prior understanding and agreements, if any,
among such parties with respect to the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or written,
concerning the subject matter hereof between and among the parties hereto which
are not fully expressed or incorporated by reference herein. The parties hereto
have had an opportunity to consult with their respective attorneys concerning
the meaning and the import of this Agreement and each has read this Agreement,
as signified by their signatures below, and are executing the same for the
purposes and consideration herein expressed.
8. This Agreement may not be modified or amended except in writing, signed
by the party or parties to be bound thereby or signed by their respective
attorneys.
9. Each part of this Agreement is intended to be several. If any term,
covenant, condition or provision hereof is illegal or invalid or unenforceable
for any reason whatsoever, such illegality, invalidity or unenforceability shall
not affect the legality, validity or enforceability of the remaining parts of
this Agreement and all such remaining parts hereto shall be legal, valid and
enforceable and have full force and effect as if the illegal, invalid,
unenforceable part has not been included.
10. This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights and benefits hereof, shall be binding upon,
and shall inure to the benefit of, the undersigned parties and their respective
heirs, executors, administrators, representatives, officers, directors,
shareholders, successors, agents, servants, employees, attorneys, and assigns.
11. This Agreement is made and entered into and is to be performed in
Dallas County, Texas. It shall be interpreted, construed and enforced and its
construction and performance shall be
Compromise and Settlement Agreement with Mutual Release - Page 6
-------------------------------------------------------
governed by the laws of the State of Texas. The parties hereto agree that venue
of any suit or any cause of action in connection with this Agreement shall lie
in Dallas County, Texas.
12. This Agreement may be executed in several counterparts by one or more
of the undersigned and all such counterparts so executed shall together be
deemed and constitute one final Agreement, as if one document had been signed by
all parties hereto; and each such counterpart shall be deemed an original,
binding the parties subscribed hereto and multiple signature pages affixed to a
single copy of this Agreement shall be deemed to be a fully executed original
Agreement.
13. Each party acknowledges that they have had the opportunity to be
represented by separate independent counsel in the negotiation of this
Agreement, that any such respective attorneys were of their own choosing, that
they have read this Agreement and that they understand its meaning and legal
consequences to them. The parties warrant and represent that they have
consulted with their attorney of choice concerning the execution of this
Agreement and the settlement of these claims, the meaning and the import of this
Agreement, and each has read this Agreement, as signified by their signatures
below, and are executing the same of their own free will for the purposes and
consideration herein expressed. The parties warrant and represent that they have
had sufficient time to consider whether to enter into this Agreement and that
they are relying solely on their own judgment and the advice of their own
counsel in deciding to execute this Agreement. The parties warrant and represent
that they have read this Agreement in its entirety and have consulted with their
attorney concerning the execution of this Agreement.
14. Each party waives the presumption that this Agreement is presumed to
be in favor of the party which did not prepare it, in case of a dispute as to
interpretation.
15. Each party represents and warrants that they have the authority to
enter into this Agreement either on their own behalf or in an official capacity
on behalf of a corporate party.
Compromise and Settlement Agreement with Mutual Release - Page 7
-------------------------------------------------------
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date set opposite their respective signatures below, but effective as of the
____ day of ________________ 1997.
RICE PARTNERS II, L.P.
By: Rice Capital Group IV, L.P.
Its: General Partner
By: RMC Fund Management, L.P.,
Its: General Partner
By: Rice Mezzanine Corporation
Its: General Partner
Date:
---------------------------------- ------------------
By: Xxxxx X.Xxxxxx
Its: Managing Director
POLYPHASE CORPORATION
Date:
---------------------------------- ------------------
By: Xxxxx Xxxxx
Its: President
PLY STADIUM PARTNERS, INC.
Date:
---------------------------------- ------------------
By: Xxxx Xxxxxx
Its: President
Compromise and Settlement Agreement with Mutual Release - Page 8
-------------------------------------------------------
Date:
---------------------------------- ------------------
Xxxx Xxxxxx, Individually
OVERHILL FARMS, INC.
----------------------------------
By: Xxxxx Xxxxx
Its: President
Compromise and Settlement Agreement with Mutual Release - Page 9
-------------------------------------------------------
STATE OF ____________ (S)
(S)
COUNTY OF ___________ (S)
On this _____ day of __________________ 1997, before me the undersigned
notary public personally appeared XXXXX X. XXXXXX, General Partner of RICE
MEZZANINE CORPORATION, General Partner of RMC FUND MANAGEMENT, L.P., General
Partner of RICE CAPITAL GROUP IV, L.P. and Managing Director of RICE PARTNERS
II, L.P., a Delaware Limited Partnership, known to me or proven to me to be the
person whose name is subscribed to the forgoing instrument and he acknowledged
to me that he executed the same for the purposes and consideration therein
expressed.
SUBSCRIBED AND SWORN to before me on the date first written above.
-------------------------------------------------
Notary Public in and for the State of
-----------
************************************
STATE OF ____________ (S)
(S)
COUNTY OF ___________ (S)
On this ______ day of __________________ 1997, before me the undersigned
notary public personally appeared XXXXX XXXXX, President of POLYPHASE
CORPORATION, a Nevada Corporation, known to me or proven to me to be the person
whose name is subscribed to the forgoing instrument and he acknowledged to me
that he executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN to before me on the date first written above.
-------------------------------------------------
Notary Public in and for the State of
-----------
Compromise and Settlement Agreement with Mutual Release - Page 10
-------------------------------------------------------
STATE OF ____________ (S)
(S)
COUNTY OF ___________ (S)
On this ______ day of ____________________ 1997, before me the undersigned
notary public personally appeared XXXX XXXXXX, President of PLY STADIUM
PARTNERS, INC., a Nevada Corporation, known to me or proven to me to be the
person whose name is subscribed to the forgoing instrument and he acknowledged
to me that he executed the same for the purposes and consideration therein
expressed.
SUBSCRIBED AND SWORN to before me on the date first written above.
-------------------------------------------------
Notary Public in and for the State of
-----------
************************************
STATE OF ____________ (S)
(S)
COUNTY OF ___________ (S)
On this ______ day of ____________________ 1997, before me the undersigned
notary public personally appeared XXXX XXXXXX, known to me or proven to me to be
the person whose name is subscribed to the forgoing instrument and he
acknowledged to me that he executed the same for the purposes and consideration
therein expressed.
SUBSCRIBED AND SWORN to before me on the date first written above.
-------------------------------------------------
Notary Public in and for the State of
-----------
Compromise and Settlement Agreement with Mutual Release - Page 11
-------------------------------------------------------
STATE OF ____________ (S)
(S)
COUNTY OF ___________ (S)
On this ______ day of ____________________ 1997, before me the undersigned
notary public personally appeared XXXXX XXXXX, President of OVERHILL FARMS,
INC., known to me or proven to me to be the person whose name is subscribed to
the forgoing instrument and he acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN to before me on the date first written above.
-------------------------------------------------
Notary Public in and for the State of
-----------
Compromise and Settlement Agreement with Mutual Release - Page 12
-------------------------------------------------------
