SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit 10.1
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE
This
Settlement Agreement and Mutual Release (the “Settlement Agreement”) is made and entered into as
of December 31,
2009 by and between Xxxxx Holdings, Inc. f/k/a
Global Logistics Acquisition Corporation (“Xxxxx”), The Xxxxx Group, Inc.
(“Xxxxx Group”), Xxxxxx X. XxXxxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxxxxx X.
Xxxx, Xxxxxxx Xxxx, Xxxxxxx X. “Skip” Xxxxxxx III, Xxxxx Xxxxxx, Xxxxxxx X.
Xxxxxxxx,1 on the one hand, and Xxxxxxx X.
Xxxxxxxx, Xx., or in his absence Xxx Xxxxx, as representative of the sellers of
the capital stock of Xxxxx Group (the “Representative”), Cherokee Capital
Management, LLC (“Cherokee”), Xxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xx.,
Delaware ESBT for Xxxxxxx X. Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx, Xxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx III, Xxxxx Xxxxxxxx, Xxxx
Xxxxxx, Xxx Xxxxx, Delaware ESBT for Xxx Xxxxx, Xxxxx Xxxxxx, Xxxx Xxxxx and
Xxxxxxx Teagan,2 on
the other hand. The parties hereto are sometimes
collectively referred to herein as the “Parties” and are sometimes individually
referred to herein as a “Party.”
WHEREAS, Xxxxx, Xxxxx Group and the Sellers are
parties to a Stock Purchase Agreement dated as of May 18, 2007, as amended
November 1, 2007, (the “Stock Purchase Agreement”), pursuant to which Sellers
sold and Xxxxx purchased the capital stock of the Xxxxx
Group;
WHEREAS, Xxxxx, the Representative and
Continental Stock Transfer & Trust Company (the “Escrow Agent”) are parties
to an Escrow Agreement, dated as of February 12, 2008 (the “Escrow Agreement”),
pursuant to which a portion of the purchase price paid by Xxxxx to Sellers
pursuant to the Stock Purchase Agreement was placed in an escrow account (the
“Escrow Fund”);
WHEREAS, a dispute has arisen regarding,
among other things, how the remaining funds in the Escrow Fund are to be
distributed;
WHEREAS, on or about March 18, 2009, the
Representative filed a Demand for Arbitration against Xxxxx with the American
Arbitration Association; No. 14 148 Y 00499 09 (the
“Arbitration”);
WHEREAS, on or about April 15, 2009,
Xxxxx answered the Representative’s Demand for Arbitration and filed a
Counterclaim against Representative in the Arbitration;
WHEREAS, on or about August 11, 2009,
Xxxxx filed a notice of claim with the Escrow Agent and on or about September 8,
2009, the Representative filed a counter-notice;
WHEREAS, as of December 28, 2009, the
Escrow Fund contains a total of $5,051,893.25;
1 Xxxxx,
Xxxxx Group, Xxxxxx X. XxXxxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxxxxx X. Xxxx,
Xxxxxxx Xxxx, Xxxxxxx X. “Skip” Xxxxxxx III, Xxxxx Xxxxxx, Xxxxxxx X. Xxxxxxxx,
are sometimes collectively referred to as the “Xxxxx
Parties.”
2 Xxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xx., Delaware ESBT for Xxxxxxx X. Xxxxxxxx, Xx.,
Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx
III, Xxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxx Xxxxx, Delaware ESBT for Xxx Xxxxx, Xxxxx
Xxxxxx, Xxxx Xxxxx and Xxxxxxx Teagan are sometimes collectively referred to as
the “Sellers.” The Representative, Cherokee and the Sellers are
sometimes collectively referred to as the “Selling
Parties.”
WHEREAS, without admitting or
determining liability, solely to compromise and settle all disputes and
potential disputes, and to avoid further and protracted negotiations, expense
and delay, the Parties mutually desire to enter into this Settlement
Agreement.
NOW, THEREFORE, for and in consideration
of the foregoing and the mutual covenants, promises, and undertakings set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, it is agreed as follows:
1. Recitals. The foregoing Recitals are
incorporated herein by reference.
2. Actions
by the Parties.
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(a)
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Release of Escrow
Funds. Contemporaneous with the execution of this
Settlement Agreement by all Parties, Xxxxx and the Representative shall
execute and deliver to the Escrow Agent a Mutually Agreed
Distribution of Escrow Funds Certificate (the “Escrow Certificate”), a
copy of which is attached hereto as Exhibit 1, instructing the Escrow
Agent to release $3,763,660.47 to Sellers and $1,288,232.78 to
Xxxxx.
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(b)
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Dismissal of
Arbitration. Immediately following the execution of this
Settlement Agreement by all Parties, the Parties through their respective
counsel shall execute and file an Agreed Order of Dismissal, a copy of
which is attached hereto as Exhibit 2, dismissing the Arbitration with
prejudice.
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3. Mutual
Release and Waiver of Claims.
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(a)
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Releases by Xxxxx
Parties. Except for the obligations
contained
in this Settlement
Agreement and those
noted in Subparagraph 3(c) below, each of the Xxxxx
Parties, in their respective individual,
representative, trustee and/or fiduciary capacities, forever releases and discharges
each of the Selling
Parties, in their respective individual,
representative, trustee and/or fiduciary capacities, and all of their respective heirs,
executors, administrators, assigns, officers, directors,
members, employees, agents, attorneys, divisions, parents, affiliates,
subsidiaries and related companies of and from any and all claims,
demands, suits,
damages, sums of
money, expenses, costs, actions, causes of
action, accounts,
reckonings, controversies, bonds, bills, specialties, contracts,
covenants, agreements, promises, variances, trespasses, judgments,
extents, executions, undertakings, debts, dues, attorneys’ fees, obligations and liabilities
of any nature, whatsoever, known or unknown, in law or in equity,
which the Xxxxx
Parties or any of their respective heirs, executors, administrators,
successors or assigns ever had, now have or hereafter can, shall or may,
have for, upon, or by reason of any matter, cause or thing whatsoever
from the beginning of
time to the present.
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(b)
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Releases by Selling
Parties. Except for the obligations
contained
in this Settlement
Agreement and those
noted in Subparagraph 3(c) below, each of the Selling Parties, in their respective individual,
representative, trustee and/or derivative capacities, forever
releases and
discharges each of the Xxxxx Parties, in their respective individual,
representative, trustee and/or fiduciary capacities, and all of their respective
heirs, executors, administrators, assigns, officers, directors,
members, employees, agents, attorneys, divisions, parents, affiliates,
subsidiaries and related companies of and from any and all claims,
demands, suits,
damages, sums of
money, expenses, costs, actions, causes of
action, accounts,
reckonings, controversies, bonds, bills, specialties, contracts,
covenants, agreements, promises, variances, trespasses, judgments,
extents, executions, undertakings, debts, dues, attorneys’ fees, obligations and liabilities
of any nature, whatsoever, known or unknown, in law or in equity,
which the Selling
Parties or any of their respective heirs, executors, administrators,
successors or assigns ever had, now have or hereafter can, shall or may,
have for, upon, or by reason of any matter, cause or thing whatsoever
from the beginning of
time to the present.
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(c) Matters not
Released.
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(1)
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Individual
Agreements. Notwithstanding the foregoing, nothing
herein is intended to or should be construed as limiting or otherwise
altering the rights or obligations any Party has or may have as a result
of its being a party to any of the following
agreements:
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(i)
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Employment
Agreement, dated as of January 1, 1998, between Xxxxx Xxxxxx and The Xxxxx
Group, Inc., including but not limited to the Confidentiality Agreement
executed by Xxxxx Xxxxxx in favor of The Xxxxx Group, Inc. and referenced
as Exhibit C thereto;
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(ii)
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Separation
Agreement and General Release between The Xxxxx Group, Inc., its parent,
subsidiaries, affiliates, successors, assigns, owners and agents
(collectively "the Company") and Xxxx Xxxxx (“Xxxxx”), dated as of May 27,
2008, including but not limited to all incorporated continuing obligations
arising under the Employment Agreement between the Xxxxx Group and Xxxxx
dated January 1, 1998, and the Confidentiality Agreement executed by Xxxxx
in favor of the Xxxxx Group dated April 17,
1998;
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(iii)
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Confidential
Separation Agreement and General Release, dated as of October 21, 2009,
between Xxxxxxx Teagan (“Teagan”) and The Xxxxx Group, Inc., its
subsidiaries and affiliated
entities;
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(iv)
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Independent
Consulting Agreement, dated as of October 21, 2009, between Teagan and The
Xxxxx Group, Inc.; and
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(v)
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Continuing
and Post-employment obligations arising under the Employment Agreement
dated January 1, 1998 between Teagan and The Xxxxx Group, Inc. and the
Confidentiality Agreement executed by Teagan dated February 28,
1995.
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(2)
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Stock Purchase
Agreement. Notwithstanding the foregoing, nothing herein
is intended to or should be construed as limiting or otherwise altering
the rights or obligations any Party has or may have under Sections 1.12
(Certain Seller Matters); 5.6(a) (Confidentiality; Access to Information);
5.20 (Noncompete; Nonsolicit; Nonhire); 5.23 (Books & Records);
Article IX (Defined Terms) of the Stock Purchase Agreement to the extent
said defined terms are pertinent to Sections 1.12, 5.6(a) 5.20 and 5.23
and Article X of the Stock Purchase Agreement; and Article X (General
Provisions) of the Stock Purchase Agreement, except that Section 10.12
(Arbitration) shall apply only to disputes that may arise under the
aforesaid provisions of the Stock Purchase Agreement and not to any
disputes that may arise under this Settlement Agreement. To the
extent any provision of the Stock Purchase Agreement is in conflict with
the terms of this Settlement Agreement, the provisions of this Settlement
Agreement shall control.
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(3)
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Acknowledgement of No
Claims. Each Party represents and warrants that, as of
the date of this Settlement Agreement, it does not know or have reason to
believe that any other Party has committed or is committing a breach of
any of the agreements referenced in Subparagraph 3(c)(1) or any of the
sections of the Stock Purchase Agreement referenced in Subparagraph
3(c)(2).
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Xxxxx
Group Settlement Agreement and Release
Page 4
of 8
4. Representations,
Warranties, and Covenants.
(a) The Parties hereby represent, warrant,
and covenant that they have full authority and ability to execute, deliver, and
perform this Settlement Agreement.
(b) The Parties hereby represent, warrant,
and covenant that this Settlement Agreement constitutes the legal, valid, and
binding obligation of the
Parties.
5. Attorneys’
Fees and Costs. The Parties agree to bear
their respective attorneys’ fees, costs, and expenses with respect to this
matter. All
administrative fees from
the American Arbitration Association concerning the Arbitration or fees from the Arbitrator or Mediator shall be
paid ½ by Xxxxx and ½ by Sellers. Notwithstanding the foregoing, in the
event of a dispute arising out of or related to the terms of Settlement
Agreement, the prevailing Party shall recover all costs related thereto,
including, but not limited to, reasonable attorneys' fees and litigation
expenses.
6. Entire
Agreement; Amendment & Waiver in Writing. This Settlement Agreement
and any exhibit hereto constitutes the entire agreement among the Parties and
all oral discussions, prior agreements (except as specifically provided for in
Section 3(c) above) and
negotiations among the Parties are merged herein and are superseded by this
Settlement Agreement. The Parties each acknowledge that they
have not executed this Settlement Agreement in reliance on any promise,
representation or warranty which is not contained herein. No provision of this Settlement
Agreement shall
be amended or waived except
by a statement in writing signed by the Party against which enforcement of the
amendment or waiver is sought.
8. Choice
of Law; Forum Selection. This Settlement Agreement shall be governed by and
construed in accordance with the laws of the state of New York without regard to choice of
law principles. All actions, suits, or other proceedings
with respect to this Settlement Agreement shall be brought exclusively in the United States
District Court for the Eastern District of Pennsylvania.
9. Counterparts. This Settlement Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A signature
page hereto may be signed in the original and delivered by facsimile or electronic mail to the other party shall constitute
effective execution and delivery of this Settlement Agreement.
Xxxxx
Group Settlement Agreement and Release
Page 5
of 8
IN WITNESS
WHEREOF the Parties have
caused this Settlement Agreement and Mutual Release to be executed by themselves or
their duly authorized representative as of the day and year first written
above.
| By: |
/s/ Xxxxxxx
Xxxxx
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| Its: |
Chief Executive
Officer
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| The Xxxxx Group, Inc. | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxx
III
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| Its: |
President
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/s/ Xxxxxx X.
XxXxxxx
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Xxxxxx X.
XxXxxxx
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/s/ Xxxxxxx X.
Xxxxx
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Xxxxxxx X.
Xxxxx
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/s/ Xxxxx
Xxxxxx
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Xxxxx
Xxxxxx
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/s/ Xxxxxx X.
Xxxx
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Xxxxxx X.
Xxxx
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/s/ Xxxxxxx
Xxxx
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Xxxxxxx
Xxxx
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/s/ Xxxxxxx X. Xxxxxxx
III
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Xxxxxxx X. “Skip” Xxxxxxx
III
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/s/ Xxxxx
Xxxxxx
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Xxxxx
Xxxxxx
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/s/ Xxxxxxx X.
Xxxxxxxx
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Xxxxxxx X.
Xxxxxxxx
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Xxxxx
Group Settlement Agreement and Release
Page
6 of 8
| Representative | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxx,
Xx.
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| Cherokee Capital Management, LLC | ||
| By: |
/s/ Xxx
Xxxxx
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| Its: |
Vice
President
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/s/ Xxxx X.
Xxxxxxxx
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Xxxx
X. Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxxx,
Xx.
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Xxxxxxx
X. Xxxxxxxx, Xx.
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| Delaware ESBT for Xxxxxxx X. Xxxxxxxx, Xx. | ||
| By: |
/s/ Xxxx X. Xxxxxx,
Xx.
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| Its: |
Vice
President
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/s/ Xxxxx X.
Xxxxxxxx
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Xxxxx
X. Xxxxxxxx
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/s/ Xxxxx X.
Xxxxxxxx
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Xxxxx
X. Xxxxxxxx
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/s/ Xxxxxx X.
Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxxx
III
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Xxxxxxx
X. Xxxxxxxx III
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Xxxxx
Group Settlement Agreement and Release
Page 7
of 8
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/s/ Xxxxx
Xxxxxxxx
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Xxxxx
Xxxxxxxx
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/s/ Xxxx
Xxxxxx
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Xxxx
Xxxxxx
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/s/ Xxx
Xxxxx
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Xxx
Xxxxx
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| Delaware ESBT for Xxx Xxxxx | ||
| By: |
/s/ Xxxxxx X.
Xxxxx
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| Its: |
Trustee
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/s/ Xxxxx
Xxxxxx
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Xxxxx
Xxxxxx
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/s/ Xxxx
Xxxxx
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Xxxx
Xxxxx
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/s/ Xxxxxxx
Teagan
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Xxxxxxx
Teagan
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Xxxxx
Group Settlement Agreement and Release
Page 8
of 8
EXHIBIT 1
MUTUALLY AGREED DISTRIBUTION OF ESCROW
FUNDS CERTIFICATE
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TO:
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Continental Stock Transfer &
Trust Co
00 Xxxxxxx
Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
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Att:
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Xxxxx X. Paolo,
CFO
Xxxxxxx Xxxxxx
Xxxxx
Xxxxx
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This Certificate is issued pursuant to
that certain Escrow Agreement, dated as of February 12, 2008, among Global Logistics Acquisition
Corporation, a Delaware corporation (‘‘Purchaser’’), the Sellers listed on the signature
page thereto (‘‘Sellers’’), Xxxxxxx X. Xxxxxxxx, Xx. or, in his
absence, Xxx Xxxxx, as Representative of the Sellers (the ‘‘Representative’’) and you, as Escrow Agent (the
‘‘Escrow
Agreement’’). Capitalized
terms used but not otherwise defined in this Certificate shall have the meanings
ascribed to them in the Escrow Agreement.
Purchaser has previously issued to you
two Claim Certificates
dated February 9, 2009 and August 11, 2009, pursuant to which it claimed that it
had a good faith belief that it was entitled to the entire Escrow Principal pursuant to the terms
of the Escrow Agreement by virtue of an Indemnity Claim arising under the Purchase
Agreement. The matters giving rise to such Claim Certificate have been the
subject of settlement negotiations between Purchaser and the Sellers, and such
parties have now settled such matters pursuant to a mutually satisfactory
settlement agreement.
Accordingly, you are hereby instructed
to distribute immediately
$1,288,232.78 from the
Escrow Principal to Purchaser by wire transfer of immediately available funds to
the following account:
Bank:
Account:
Routing Number:
And you are further instructed to
distribute immediately $3,763,660.47 to the Representative by wire transfer of
immediately available funds to the following account:
Bank:
Account:
Routing Number:
Dated: December 31, 2009
| PURCHASER: | |||
| GLOBAL LOGISTICS ACQUISITION CORPORATION | |||
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By:
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| Name: | |||
| Title: | Authorized Signatory | ||
| THE REPRESENTATIVE: | |||
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By:
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| Name: | |||
| Title: | Representative | ||
EXHIBIT 2
AMERICAN
ARBITRATION ASSOCIATION
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XXXXXXX
X. XXXXXXXX, XX., or, in his absence,
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Arb.
No. 14 148 Y 00499 09
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XXX
XXXXX, as representative of a group of sellers
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of
the capital stock of The Xxxxx Group, Inc.,
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Claimant,
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AGREED
ORDER
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OF
DISMISSAL WITH
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and
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PREJUDICE
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XXXXX
HOLDINGS, INC., f/k/a GLOBAL
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LOGISTICS
ACQUISITION CORPORATION, as
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the
purchaser of the capital stock of The Xxxxx
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Group,
Inc.,
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Respondent.
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x
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Pursuant to the agreement of the
parties, as evidenced by the signatures of counsel below, it is hereby agreed that the Arbitration and all claims and
counterclaims asserted therein should be dismissed with prejudice with each
party bearing its own costs, expenses and attorneys’ fees. All administrative fees from the
American Arbitration Association concerning the Arbitration or from the
Arbitrator shall be paid ½ by Claimant and ½ by Respondent.
It is so ORDERED, this ___ day of
__________________,
20____.
| Xxxxxxx Xxxxxxxxx | ||
| American Arbitration Association Arbitrator |
APPROVED FOR ENTRY:
____________________________________
Xxxxxx X.
Xxxx
Xxxx X.
Xxxxxxxxx XX
Xxxxxxxx
& Xxx, PLC
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxxxx 00000
(000)
000-0000
xxxxx@xxxxxxxxxxx.xxx
xxxxxxxxxx@xxxxxxxxxxx.xxx
____________________________________
Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
xxxxxx@xxxxxxxx.xxx
