1
EXHIBIT 10.47
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
American Eagle Group, Inc. ("AEG"), American Financial Group, Inc.
("AFG"), and Great American Insurance Company ("GAIC"), enter into this
Settlement Agreement and Mutual Release (the "Agreement") effective as of
November 4, 1997 (the "Effective Date").
1. Concurrently with the execution of this Agreement, one or more of the
parties to this Agreement are entering into a Renewal/Retention Commission
Agreement and Escrow Agreement (collectively the "Related Agreements"). As
between or among the parties to this Agreement, the terms and conditions of the
Related Agreements are adopted and incorporated by reference as if fully set
forth in this Agreement. True and correct copies of the Related Agreements are
attached as Exhibits A and B, respectively, to this Agreement.
2. On the Effective Date, GAIC shall transfer, assign, and deliver to
AEG, or cause to be transferred, assigned, and delivered to AEG, the 350,000
shares of Series D Preferred Stock of AEG (the "Purchased Securities") that AEG
had issued to GAIC pursuant to the November 5, 1996 Securities Purchase
Agreement by and between AEG and AFG, along with any dividends or other
benefits accruing thereunder from the date that AEG issued the Purchased
Securities to GAIC to the date of their return to AEG pursuant to this
paragraph. GAIC warrants and represents to AEG that it has not assigned or
transferred all or any portion of its interest in the Purchased Securities and
dividends and other benefits accruing thereunder to any other person or entity
and that it is returning the Purchased Securities and any dividends or other
benefits accruing thereunder free and clear of any liens, security interests,
or other claims of any other person or entity. AFG agrees to take such action
as shall be necessary or appropriate to fulfill its obligations under this
paragraph 2.
2
3. AFG, GAIC, and their respective directors, principals, officers,
managers, supervisors, employees, agents, representatives, attorneys,
accountants, actuaries, parents, subsidiaries, affiliates, predecessors,
successors, and assigns, past, present, and future, directly or indirectly and
in any capacity (collectively referred to hereafter as the "AFG Parties" and
the "GAIC Parties" respectively), and except as limited below, hereby acquit,
discharge, and release AEG and its respective directors, former directors and
their affiliates, principals, officers, managers, supervisors, employees,
agents, representatives, attorneys, accountants, actuaries, parents,
subsidiaries, affiliates, predecessors, successors, and assigns, past or
present (collectively referred to hereafter as the "AEG Parties") from any and
all debts, damages, claims, liabilities, obligations, and causes of actions,
whether known, unknown, or unforeseen, whether liquidated or unliquidated, from
the beginning of time to the Effective Date of this Agreement. For purposes
of this Agreement, including without limitation Section 4 hereof, the term "AEG
Parties" includes, but is not limited to, the persons on the attached Exhibit C
to this Agreement (1) in their individual capacities, (2) as present or former
officers, directors, or employees of AEG, (3) as former officers, directors, or
employees of American Eagle Insurance Company ("AEIC"), or (4) in any other
capacity. Notwithstanding the first sentence of this paragraph, excepted from
the scope of this release are any debts, damages, claims, liabilities,
obligations, or causes of action arising under or in connection with this
Agreement or with any of the Related Agreements.
4. The AEG Parties (other than AEIC), past, present, or future, directly
or indirectly and in any capacity, and except as limited below, hereby acquit,
discharge, and release the AFG Parties and the GAIC Parties from any and all
debts, damages, claims, liabilities, obligations, and causes of actions,
whether known, unknown, or unforeseen, whether liquidated or unliquidated,
from the
3
beginning of time to the Effective Date of this Agreement. For purposes of
this Agreement, including without limitation Section 3 hereof, the terms "AFG
Parties" and "GAIC Parties" includes, but is not limited to, the persons on the
attached Exhibit D to this Agreement (1) in their individual capacities, (2) as
present or former officers, directors, or employees of AFG or GAIC, (3) as
former officers, directors or employees of AFG or GAIC, or (4) in any other
capacity. Notwithstanding the first sentence of this paragraph, excepted from
the scope of this release are any debts, damages, claims, liabilities,
obligations, or causes of action arising under or in connection with this
Agreement or with any of the Related Agreements.
5. Each of the parties to this Agreement warrants and represents to each
of the other parties to this Agreement, singly and collectively, that as of the
Effective Date, and as of the date of his or its execution of this Agreement,
that he or it has not assigned or transferred all or any portion of the debts,
damages, claims, liabilities, obligations, and causes of actions being
acquitted, discharged, or released under paragraphs 3 and 4 of this Agreement
(the "Released Claims") to any other person or entity.
6. Each of the parties to this Agreement warrants and represents to each
of the other parties to this Agreement, singly and collectively, that he or it
has read and understood this Agreement and has entered into this Agreement of
his or its own free will and accord after full opportunity to investigate the
facts and law applicable to this Agreement and the transactions and disputes
leading up to the execution of this Agreement and in accordance with his or its
own judgment and upon advice of their own legal counsel, and states that he or
it has not been induced to enter into this Agreement by any statement, act, or
representation of any kind or character on the part of anyone except as
expressly set forth in this Agreement.
4
7. Each of the parties to this Agreement warrants and represents to each
of the other parties to this Agreement, singly and collectively, that each of
the signatories to this Agreement is fully authorized to bind the respective
parties to this Agreement.
8. Except to the extent required by law, each of the parties agrees that
he or it will not make or publicize any statements to any third party regarding
this Agreement, any of the Related Agreements, or any of the events,
circumstances, transactions, or disputes leading up to the execution of this
Agreement or any of the Related Agreements that would tend to damage the
reputation or impeach the honesty, integrity, virtue, or reputation of any of
the parties to this agreement or any of their respective directors, former
directors, and their affiliates, principals, officers, managers, supervisors,
employees, agents, representatives, attorneys, accountants, actuaries, parents,
subsidiaries, affiliates, partners, joint venturers, predecessors, successors,
and assigns, past and present.
9. The Agreement and the Related Agreements contain the entire agreement
between or among the parties and supersedes any and all prior oral or written
representations, statements, understandings, arrangements, or agreements
between or among the parties. Neither this Agreement nor any term or condition
of this Agreement may be altered, modified, amended, or waived except by a
written agreement signed by the parties.
10. This Agreement was the product of arms-length negotiation between
sophisticated parties represented by counsel. Accordingly, the parties agree
that the rule that a contract shall be construed against the party who drafted
it or selected its language shall have no application to the construction,
interpretation, or enforcement of this Agreement.
5
11. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors, and
assigns.
12. This Agreement may be executed in multiple counterparts.
13. In the event that any of the terms or conditions of this Agreement are
held or ruled to be illegal, unenforceable, or invalid in whole or in part,
such holding or ruling shall not affect the validity or enforceability of the
other terms or conditions of this Agreement, and this Agreement shall be
construed, interpreted, and enforced as if the illegal, unenforceable, or
invalid provision or part thereof was never part of this Agreement. This
Agreement shall be construed or interpreted wherever possible so as to give
validity and effect to its terms or conditions and to effect the obligations of
AFG set forth in paragraph 2 of this Agreement and the mutual releases set
forth in paragraphs 3 and 4 of this Agreement.
14. Notwithstanding anything herein to the contrary, this Settlement
Agreement and Mutual Release shall be effective only when (i) the Related
Agreements have been executed by all parties thereto, (ii) the escrow deposit
has been made by AEG, as required under the Escrow Agreement attached hereto as
Exhibit B, and (iii) AFG and GAIC have received a release executed by AEIC in
conservatorship, releasing the obligation of GAIC pursuant to the Purchase
Agreement, dated July 31, 1997, to pay AEIC commissions based on renewals or
reissuances of certain insurance policies, and acknowledging that AEG has
assumed such obligation in place of GAIC.
15. New York law shall govern the validity, construction, performance,
and enforcement of this Agreement.
6
AMERICAN EAGLE GROUP, INC.
By:
-----------------------
Title:
--------------------
AMERICAN FINANCIAL GROUP, INC.
By:
-----------------------
Title:
--------------------
GREAT AMERICAN INSURANCE COMPANY
By:
-----------------------
Title:
--------------------
