SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit 10.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Release (“Agreement”) is made and entered into between Xxxxxx’x
Operating Company, Inc. (“HOC”) and Xxxxxx’x Entertainment, Inc. (“HEI” and, collectively with HOC,
“Xxxxxx’x”), and PROS Revenue Management, L.P. (“PROS”). Each of the parties to this Agreement may
be referred to individually as a “Party,” and collectively as the “Parties.”
WHEREAS, HOC filed a complaint against PROS entitled Complaint for Breach of Contract
(“Complaint”), in the District Court for Xxxxx County, Nevada, on or about April 2008, Case Number
A561479 (the “Action”);
WHEREAS, PROS removed the Action to the United States District Court, District of Nevada, on
or about May 22, 2008, Case Number 2:08-cv-00666-RCJ-GWF;
WHEREAS, PROS filed an answer to the Complaint and counterclaims against HOC entitled Answer
and Counterclaims of PROS Revenue Management, L.P. (“Answer”), in the United States District Court
for the District of Nevada, on or about May 30, 2008, Case Number 2:08-cv-00666-RCJ-GWF;
WHEREAS, the Parties stipulated to remand the Action to the District Court for Xxxxx County,
Nevada, on or about February 26, 2009, Case Number 2:08-cv-00666-RCJ-GWF;
WHEREAS, HOC filed an amended complaint against PROS entitled First Amended Complaint for
Breach of Contract, Fraud, and Negligent Misrepresentation (“FAC”), in the District Court for Xxxxx
County, Nevada, on or about May 26, 2009, Case Number A561479;
WHEREAS, PROS filed an answer to the FAC and counterclaims against HOC entitled Answer to the
First Amended Complaint and Counterclaims of PROS Revenue Management, L.P. (“Answer to FAC”), in
the District Court for Xxxxx County, Nevada, on or about August 28, 2009, Case Number A561479;
WHEREAS, HOC filed an amended complaint against PROS entitled Plaintiff Xxxxxx’x Operating
Company, Inc.’s Second Amended Complaint for Breach of Contract, Fraud, and Negligent
Misrepresentation (“SAC”), in the District Court for Xxxxx County, Nevada, on or about March 12,
2010, Case Number A561479;
WHEREAS, HOC filed an amended complaint against PROS entitled Plaintiff Xxxxxx’x Operating
Company, Inc.’s Third Amended Complaint for Breach of Contract, Fraud, and Negligent
Misrepresentation (“TAC”), in the District Court for Xxxxx County, Nevada, on or about June 15,
2010, Case Number A561479;
WHEREAS, PROS filed an answer to the TAC and counterclaims against HOC and HEI entitled Answer
to the Third Amended Complaint and Counterclaims of PROS Revenue Management, L.P. (“Answer to
TAC”), in the District Court for Xxxxx County, Nevada, on or about July 2, 2010, Case Number
A561479;
WHEREAS, the Parties wish to resolve their differences and bring an end to the Action;
WHEREAS, each Party understands and agrees that this Agreement is a compromise and settlement
of disputed claims and that this Agreement is not to be construed as an admission of liability by
any Party,
NOW, THEREFORE, with the intent and purpose of satisfying and settling all claims between the
Parties, and in consideration of the promises contained in this Agreement, the Parties agree as
follows:
1. Execution of Agreement, Payment of Settlement Amount, and Dismissal of TAC and Answer
to TAC. In consideration of the releases contained herein and other good and valuable
consideration provided by this Agreement, PROS shall pay to HOC the amount of $9,000,000
(“Settlement Amount”) within ten (10) calendar days of the execution of this Agreement. Payment of
the Settlement Amount shall be made by electronic wire transfer to the following bank account:
Bank: Bank of America
Routing Number: ABA 000000000
Account Number: 00990104564
Beneficiary Name: Xxxxxx’x Operating Company
Within three (3) court days of HOC’s receipt of payment of the Settlement Amount, the Parties,
through their respective counsel, shall execute and deliver to the District Court for Xxxxx County,
Nevada, a joint stipulation pursuant to NRCP 41(a)(1) to dismiss the Action with prejudice,
attached hereto as Exhibit A.
2. The Parties agree to take any further action reasonably necessary to accomplish dismissal
of all claims and counterclaims against the Parties with prejudice.
3. Releases.
(a) Releases by HOC. HOC, for itself and each of its current and former directors,
officers, shareholders, partners, principals, agents, employees, attorneys, and accountants,
and any predecessors-in-interest, successors-in-interest, assigns, subsidiaries, divisions
or affiliates of HOC and each of their current or former directors, officers, agents,
employees, attorneys, and accountants, forever releases and discharges PROS and each of its
current and former directors, officers, shareholders, partners, principals, agents,
employees, attorneys, and accountants, and any predecessors-in-interest,
successors-in-interest, assigns, subsidiaries, divisions or affiliates of PROS and each of
their current or former directors, officers, agents, employees, attorneys, and accountants
(collectively the “PROS Releasees”), of and from all disputes, claims, causes of action,
actions, judgments, liens, indebtedness, costs, damages, obligations, attorneys’ fees,
losses, liabilities and demands of whatever kind and character (collectively, “Claims”)
which now exist, or may exist or have existed, from the beginning of time to the date this
Agreement is fully executed, known or unknown, foreseen or unforeseen, liquidated or
unliquidated,
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potential or actual, including but not limited to all Claims alleged, or that could have
been alleged, or that could be alleged, in the Action, and all Claims relating to or arising
out of any local, state, federal, or foreign statute, ordinance, regulation, order, or
common law. It is further understood and agreed that HOC irrevocably has waived all rights
against the PROS Releasees under California Civil Code Section 1542 and under any similar
laws. Section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Notwithstanding the provisions of Section 1542 and any similar laws, and for the purpose of
implementing a full and complete release and discharge of the PROS Releasees of all Claims,
HOC expressly acknowledges that this Agreement and its releases are intended to include in
their effect all of HOC’s claims against the PROS Releasees, whether or not HOC knows or
suspects such to exist at the time of execution of this Agreement, and that this Agreement
contemplates the extinguishment of all such claims.
(b) Releases by HEI. HEI, for itself and each of its current or former directors,
officers, shareholders, partners, principals, agents, employees, attorneys, and accountants,
and any predecessors-in-interest, successors-in-interest, assigns, subsidiaries, divisions
or affiliates of HEI and each of their current or former directors, officers, agents,
employees, attorneys, and accountants, forever releases and discharges the PROS Releasees of
and from all Claims which now exist, or may exist or have existed, from the beginning of
time to the date this Agreement is fully executed, known or unknown, foreseen or unforeseen,
liquidated or unliquidated, potential or actual, including but not limited to all Claims
alleged, or that could have been alleged, or that could be alleged, in the Action, and all
Claims relating to or arising out of any local, state, federal, or foreign statute,
ordinance, regulation, order, or common law. It is further understood and agreed that HEI
irrevocably has waived all rights against the PROS Releasees under California Civil Code
Section 1542 and under any similar laws. Section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Notwithstanding the provisions of Section 1542 and any similar laws, and for the purpose of
implementing a full and complete release and discharge of the PROS Releasees of all Claims,
HEI expressly acknowledges that this Agreement and its releases are intended to include in
their effect all of HEI’ claims against the PROS Releasees, whether or not HOC knows or
suspects such to exist at the time of execution of this Agreement, and that this Agreement
contemplates the extinguishment of all such claims.
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(c) Releases by PROS. PROS, for itself and each of its current and former
directors, officers, shareholders, partners, principals, agents, employees, attorneys, and
accountants, and any predecessors-in-interest, successors-in-interest, assigns,
subsidiaries, divisions or affiliates of PROS and each of their current or former directors,
officers, agents, employees, attorneys, and accountants, forever releases and discharges HOC
and HEI and each of their current and former directors, officers, shareholders, partners,
principals, agents, employees, attorneys, and accountants, and any predecessors-in-interest,
successors-in-interest, assigns, subsidiaries, divisions or affiliates of PROS and each of
their current or former directors, officers, agents, employees, attorneys, and accountants
(collectively the “Xxxxxx’x Releasees”), of and from all Claims which now exist, or may
exist or have existed, from the beginning of time to the date this Agreement is fully
executed, known or unknown, foreseen or unforeseen, liquidated or unliquidated, potential or
actual, including but not limited to all claims alleged, or that could have been alleged, or
that could be alleged, in the Action. This release includes, but is not limited to, any and
all Claims relating to or arising out of any local, state, federal, or foreign statute,
ordinance, regulation, order, or common law. It is further understood and agreed that PROS
has waived all rights against the Xxxxxx’x Releasees under California Civil Code Section
1542 and under any similar laws. Section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Notwithstanding the provisions of Section 1542 and any similar laws, and for the purpose of
implementing a full and complete release and discharge of the Xxxxxx’x Releasees of all
Claims, PROS expressly acknowledges that this Agreement and its releases are intended to
include in their effect all of the PROS’ claims against the Xxxxxx’x Releasees, whether or
not the PROS knows or suspects such to exist at the time of execution of this Agreement, and
that this Agreement contemplates the extinguishment of all such claims.
4. Return or Destruction of PROS’ Software. HOC and HEI shall return or destroy any
known copies of PROS’ Hotel Revenue Optimization Solution (“HROS”) that was physically delivered to
HOC between March 1, 2006 and April 22, 2008, as well as any known copies of any other software
PROS physically delivered to HOC between March 1, 2006 and April 22, 2008, including any extracts,
samples or portions that performed or purported to perform Market Revenue Management Software
(“MRM”) or Incented Demand Forecasting Software (“IDF”) , whether such copies exist on disc, CD, or
DVD. Additionally, to the extent any such software delivered by PROS is found to exist on the hard
drive of any computer system, HOC and HEI agree not to use that software. Xxxxxx’x further
acknowledges that Xxxxxx’x and its affiliates have no continuing right to PROS’ software and agree
that they will not disclose, copy, market, license or use the software. However, this paragraph
does not apply to any software that was not physically delivered by PROS, i.e., software from third
party vendors, whether or not PROS believes that such vendors have included PROS concepts or ideas
in their software. Further, to the extent PROS still maintains any data delivered to it by HOC or
HEI, PROS agrees to return or destroy such data.
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5. Termination of Prior Agreements. The Parties also agree that the Software License
Agreement, Maintenance Agreement, Hosting Agreement and all other related agreements entered into
between the Parties in 2006 are terminated, and that this Agreement supersedes all prior agreements
between the Parties.
6. Waiver of Fees and Costs. Each of the Parties shall pay all of its own legal fees,
costs, and any other expenses incurred or to be incurred in connection with the instant action.
7. Authority to Settle. The Parties warrant that they have the power, right and
authority to settle and release fully and completely all Claims that they are settling and
releasing in this Agreement.
8. Successors in Interest. The Parties agree that this Agreement shall be binding
upon the Parties, and, as applicable, upon their heirs, executors, administrators, dependents,
predecessors, successors, subsidiaries, divisions, alter egos, affiliated corporations and related
entities, and their past or present officers, directors, partners, employees, attorneys, assigns,
agents, representatives, and any or all of them.
9. No Assignment. Each Party warrants and represents that it owns and controls each
of the claims, causes of action, or other matters that are released by this Agreement and that it
has not assigned or transferred to any other person any of the claims, causes of action, or other
matters that are released by this Agreement.
10. Entire Agreement. This Agreement contains the entire agreement and understanding
concerning the subject matter of the Agreement between the Parties, and supersedes and replaces all
prior negotiations and proposed settlement agreements, written or oral. Each of the Parties to
this Agreement acknowledges that no other Party to this Agreement, nor any agent or attorney of any
such Party, has made any promise, representation or warranty, express or implied, not contained in
this Agreement to induce any Party to execute this Agreement. The Parties further acknowledge that
they are not executing this Agreement in reliance on any promise, representation or warranty not
contained in this Agreement.
11. Advice of Counsel. Each Party represents that he, she, or it has: i) been
adequately represented, or has had the opportunity to be represented, by independent legal counsel
of its own choice, throughout all of the negotiations that preceded the execution of this
Agreement; ii) executed this Agreement with the consent and upon the competent advice of such
counsel, or that it has had the opportunity to seek such consent and advice; iii) read this
Agreement, and understands and assents to all the terms and conditions contained in this Agreement
without any reservations; and iv) had, or has had the opportunity to have had, the same explained
to it by its own counsel, who have answered any and all questions which have been asked of them, or
which could have been asked of them, with regard to the meaning of any of the provisions of this
Agreement.
12. No Admissions. By entering into this Agreement, no Party intends to make, nor
shall be deemed to have made, any admission of any kind. The Parties agree that they are entering
into this Agreement solely for the purpose of avoiding the costs of further litigation of the
Action. This Agreement is the product of informed negotiations and compromises of previously
stated legal positions. Nothing contained in this Agreement shall be construed as an admission by
any Party as
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to the merit or lack of merit of any particular claim or defense. Any statements made in the
course of negotiations have been and shall be without prejudice to the rights of the Parties in any
disputes or transactions with any other person or entity not party to this Agreement, and shall
remain confidential pursuant to Nevada Rev. Stat. 48.105, Nevada Supreme Court Rules, Part VII,
Rule 3(4)(e), and Federal Rule of Evidence 408.
13. Confidentiality. This Agreement, the Settlement Amount, and the terms and
conditions of the Agreement are confidential to the Parties, and except as specifically provided in
this provision, the Parties shall not publish, reproduce, transmit or disclose any of the
information contained in this Agreement to any parties other than Xxxxxx’x and PROS, except to the
extent authorized or required by law. However, the Parties may disclose and acknowledge the fact
that the Action has been settled and mutually resolved. Moreover, nothing in this Agreement is in
any way intended to prevent, or prevents, the Parties from disclosing this Agreement, the
Settlement Amount, and the terms and conditions of the Agreement to their accountants, attorneys,
insurers, shareholders, or anyone to whom such disclosure is required by, or necessary for
compliance with, state or federal law or regulations or other legal obligations, including but not
limited to any filings with the Securities and Exchange Commission, such as a Form 8-K.
Additionally, the Parties agree that PROS may issue a press release concerning the Agreement
disclosing the Settlement Amount so long as PROS agrees not to disparage any Xxxxxx’x related
entity, or any current or former officers, directors or employees of any Xxxxxx’x related entity,
in any such press release.
14. Governing Law and Venue. This Agreement shall in all respects be interpreted,
enforced, and governed by and under the internal laws of the State of Nevada. Each Party agrees
that in the event a dispute arises as to the validity, scope, applicability, or enforceability of
this Agreement, the prevailing party shall be entitled to recover its costs and reasonable
attorney’s fees. Further, any action or other proceeding relating in any way to this Agreement,
including but not limited to any action initiated to construe or enforce any of the provisions of
this Agreement, shall be filed exclusively in the District Court for Xxxxx County, Nevada.
15. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be an original as against any Party who signed it, and all of which shall constitute
one and the same document. Further, the Parties agree that facsimile and/or e-mail signatures of
each Party shall be deemed original signatures and shall be binding on the Party whose signature is
by facsimile and/or e-mail as if it were their original signature.
16. Construction. The headings of the sections of this Agreement are for convenience
of reference only and shall not affect the meaning or interpretation of this Agreement. It is
understood and acknowledged that this Agreement shall not be construed in favor of or against any
Party by reason of the extent to which any Party or its counsel has participated in the drafting of
this Agreement.
17. Authorization to Execute Agreement. Each individual who executes this Agreement
on behalf of any Party represents and warrants that the individual does so with the knowledge and
express approval and authorization of the Party on whose behalf the individual executes this
Agreement.
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18. Amendment of this Agreement. This Agreement and its terms, provisions, covenants
and conditions may not be amended, changed, altered, modified or waived except by an express
instrument in writing signed by each and every one of the Parties.
19. No Waiver of Breach. No waiver of any breach of any term or provision of this
Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement.
No waiver shall be binding unless in writing and signed by the Party waiving the breach.
20. Disputes. Prior to any Party commencing any formal proceeding arising from a
dispute or controversy under this Agreement, the Parties shall make a good faith attempt and use
all reasonable efforts to resolve such dispute or controversy through negotiation.
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BY EXECUTING THIS AGREEMENT, EACH OF THE PARTIES ACKNOWLEDGES THAT IT HAS READ THIS ENTIRE
AGREEMENT CAREFULLY AND UNDERSTANDS EACH OF THE TERMS AND PROVISIONS SET FORTH HEREIN.
This Agreement shall not become effective until it has been executed by all Parties and
approved by their respective counsel. This Agreement consists of eight (8) pages, including
signature pages but excluding Exhibits.
| XXXXXX’X OPERATING COMPANY, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| Date: | September 2, 2010 | |||
| XXXXXX’X ENTERTAINMENT, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| Date: | September 2, 2010 | |||
| PROS REVENUE MANAGEMENT, L.P. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| Date: | September 2, 2010 | |||
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Approved As to Form:
Xxxxxx, Xxxx & Xxxxxxxx LLP
By
|
/s/ Xxxxx X Xxxxxxxx | September 2, 2010 | ||
| Xxxxx X. Xxxxxxxx | Date | |||
| Counsel for Xxxxxx’x Operating Company, Inc., and Xxxxxx’x Entertainment, Inc. |
||||
| Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx | ||||
By
|
/s/ Xxxxxxx X. Xxxxx | September 2, 2010 | ||
| Xxxxxxx X. Xxxxx | Date | |||
| Counsel for PROS Revenue Management, L.P. | ||||
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