EXHIBIT 10.24
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is made and entered into
on April 3, 1995 by and among Xxxxx Corporation, a Delaware corporation
("Xxxxx"), and Xxxxxx Investors, L.P., a Delaware partnership ("Xxxxxx XX"),
Xxxxxxxx X. Xxxxxx, Xx., an individual ("Xxxxxx"), Xxxxxxxx X. Xxxxxx, Xx.
Foundation, an Ohio trust ("Xxxxxx Trust"), and Xxxxxxxx X. Xxxxxx, Xx.-XXX
("Xxxxxx XXX"; and collectively with Xxxxxx XX, Xxxxxx Trust, and Xxxxxx, the
"Xxxxxx Parties").
R E C I T A L S
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1. Xxxxx and Xxxxxx XX are parties to a lawsuit filed by Xxxxxx XX in
the Court of Chancery of the State of Delaware in and for New Castle County
(C.A. No. 13867) (the "Delaware Action").
2. The Xxxxxx Parties are parties to a lawsuit filed by Citadel
Holding Corporation, a Delaware corporation ("Citadel"), in the United States
District Court, Central District of California (Case No. CV-94-7735 R) (the
"Federal Action," and collectively with the Delaware Action, the "Actions").
3. Xxxxx and the Xxxxxx Parties desire to avoid the cost, expense and
risk associated with further litigation with respect to the Actions.
NOW, THEREFORE, in consideration of the foregoing and the provisions
set forth below, the parties hereto agree as follows:
ARTICLE ONE
SETTLEMENT OF THE ACTIONS
1.1 In consideration of all the promises, conditions, and covenants
set forth herein and subject to the provisions of this Agreement, and except for
the obligations of the Xxxxxx Parties hereunder, effective as of and conditioned
upon consummation of the Closing (as defined below), Xxxxx hereby forever
releases, acquits, and discharges the Xxxxxx Parties, Xxxxxxx X. Xxxxx
("Xxxxx"), Xxxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx") and
Xxxxxx X. Xxxxxxx ("Xxxxxxx"), and all of their past and present predecessors,
successors, assigns, directors, employees, partners, agents, attorneys,
affiliates, and parent and subsidiary corporations and partnerships (Shoup,
Kelley, Whitworth, Spiegel, the Xxxxxx Parties and such other persons are
collectively referred to herein as the "Xxxxxx Releasees"), of and from any and
all manner of actions, causes of action, rights in law or in equity, suits,
debts, liens, judgments, indebtedness, contracts, agreements, promises,
liabilities, claims, cross-claims, demands, damages, losses, accounts,
reckonings, obligations, interest, costs, or expenses, of any type, kind, or
nature whatsoever, known or unknown, fixed or contingent, liquidated or
unliquidated, claimed or unclaimed, whether based in contract, tort, or other
legal, statutory, or equitable theory of recovery, each as though fully set
forth at length herein, that Xxxxx has or at anytime has had against the Xxxxxx
Releasees, or any of them, by reason of any matter, cause, act, omission, or
thing whatsoever from the beginning of time through the Closing Date (as defined
below), arising out of or in connection with (i) all claims asserted or that
could have been asserted in, or arising out of the facts asserted or that could
have been asserted in, the Actions, (ii) the initiation, prosecution and defense
of the Actions, (iii) all claims asserted, that could have been asserted, or
that relate in any way to, the securities of Citadel, including, without
limitation, claims under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the "Exchange Act Laws"), and (iv) all claims asserted or that
could have been asserted with respect to, or that relate in any way to, the
purchase or ownership of the securities of Citadel by the Xxxxxx Parties.
1.2 In consideration of all the promises, conditions, and covenants
set forth herein and subject to the provisions of this Agreement, and except for
the obligations of Xxxxx hereunder, effective as of and conditioned upon
consummation of the Closing, the Xxxxxx Parties hereby forever release, acquit,
and discharge Xxxxx and all of its past and present predecessors, successors,
assigns, directors, employees, partners, agents, attorneys, affiliates, and
parent and subsidiary corporations and partnerships (Xxxxx and such other
persons are collectively referred to herein as the "Xxxxx Releasees"), of and
from any and all manner of actions, causes of action, rights in law or in
equity, suits, debts, liens, judgments, indebtedness, contracts, agreements,
promises, liabilities, claims, cross-claims, demands, damages, losses, accounts,
reckonings, obligations, interest, costs, or expenses, of any type, kind, or
nature whatsoever, known or unknown, fixed or contingent, liquidated or
unliquidated, claimed or unclaimed, whether based in contract, tort, or other
legal, statutory, or equitable theory of recovery, each as though fully set
forth at length herein, that the Xxxxxx Parties, or any of them, have or at
anytime have had against the Xxxxx Releasees, or any of them, by reason of any
matter, cause, act, omission, or thing whatsoever from the beginning of time
through the Closing Date, arising out of or in connection with (i) all claims
asserted or that could have been asserted in, or arising out of the facts
asserted or that could have been asserted in, the Actions, (ii) the initiation,
prosecution and defense of the Actions, (iii) all claims asserted, that could
have been asserted, or that relate in any way to, the securities of Citadel,
including, without limitation, claims under the Exchange Act Laws, and (iv) all
claims asserted or that could have been asserted with respect to, or that relate
in any way to, the purchase or ownership of the securities of Citadel by Xxxxx.
1.3 As used herein, the terms "Closing" and "Closing Date" shall mean
the Closing and Closing Date, respectively, contemplated by the Stock Exchange
and Settlement Agreement of even date herewith among Citadel and the Xxxxxx
Parties.
1.4 It is understood and agreed that the parties hereto, and each of
them, hereby expressly waive all rights under Section 1542 of the Civil Code of
California, and any law or principle of similar effect of any state or territory
of the United States. Said section reads as follows:
"SECTION 1542. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR."
The advice of legal counsel has been obtained by each of the parties
hereto prior to signing this Agreement.
1.5 The parties hereto agree that they shall forthwith cause their
respective Delaware trial counsel to apply to the Court of Chancery to vacate
the trial date for the Delaware Action, currently set for April 18-21, 1995.
The parties further agree that, upon approval of the Court of Chancery to vacate
the trial date, all discovery and pretrial proceedings in the Delaware Action
will be stayed for a period of 30 days from the date hereof. Upon the
expiration of such 30 days, in the absence of either the Closing or an agreement
of the parties hereto to a further stay of proceedings, the parties shall
forthwith
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cause their respective counsel jointly to confer, to the extent necessary, with
the Court of Chancery to establish a schedule for completion of discovery and
other pretrial proceedings and the fixing of a new trial date at the earliest
time consistent with the discovery requirements and the Court's calendar.
1.6 Xxxxx and the Xxxxxx Parties hereby authorize and direct their
respective attorneys to execute and file on the Closing Date stipulations for
dismissal with prejudice of the Delaware Action, and such actions at such time
shall be a term of this Agreement.
1.7 This Agreement constitutes the compromise, settlement and release
of disputed claims, denials and defenses made or that could have been made by
Xxxxx or the Xxxxxx Parties, or any of them, and is being entered into solely
for the purpose of avoiding the burdens, inconveniences and expenses of further
litigation and disputes between the parties with respect to the Actions.
Therefore, this Agreement is not to be, and shall never be construed or deemed
to be, an admission or concession by Xxxxx or the Xxxxxx Parties, or any of
them, of liability or culpability, or lack thereof, at any time for any purpose
concerning the Actions hereby compromised, settled and released. Further,
nothing contained herein or in any form of communication between Xxxxx and the
Xxxxxx Parties, their respective attorneys and representatives, or any of them,
pertaining to the consummation of this Agreement or the compromise, settlement
and releases reflected herein shall be construed or deemed to be an admission or
concession of liability or culpability, or lack thereof, by Xxxxx or the Xxxxxx
Parties, or any of them, concerning such matters.
ARTICLE TWO
AGREEMENT NOT TO ELECT TO CONVERT
CITADEL HOLDING CORPORATION PREFERRED STOCK
2.1 As further consideration of all the promises, conditions, and
covenants set forth herein and subject to the provisions of this Agreement,
Xxxxx hereby covenants that, prior to February 4, 1996, Xxxxx will not, absent
the approval of a majority of the outstanding shares of common stock of Citadel,
exercise its right to tender any share or shares of the 3% Cumulative Voting
Convertible Preferred Stock (the "Preferred Stock") of Citadel, for conversion
into common stock of Citadel pursuant to Section 7 of the Certificate of
Designation of the Preferred Stock. Xxxxx further agrees to obtain from any
transferee of any shares of Preferred Stock an undertaking to the same effect as
this and the preceding sentence. Effective as of the Effective Date (as defined
below), Xxxxx will enter into an agreement with Citadel to the effect of this
Section 2.1.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
3.1 Mutual Representations and Warranties. Each party hereby
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represents and warrants to the others as follows:
(a) Each party that is a corporation is a corporation duly
incorporated, validly existing and in good standing under the laws of its state
of incorporation and is duly qualified and authorized to do business in the
State of California. Each party that is a partnership is a partnership duly
formed, validly existing and in good standing as a partnership under the laws of
its state of organization. Each party that is a trust is a trust duly created,
and validly existing as a trust under the laws of the state under which it was
created.
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(b) It has full power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. This Agreement is its or
his (as applicable) valid and binding agreement, enforceable against it or him
in accordance with its terms (as to Xxxxx, its representation in this sentence
is limited solely to Section 1.5 until the Effective Date, at which time this
representation shall apply to the entire Agreement).
(c) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate, result in a
breach of any of the terms or provisions of, constitute a default (or any event
that, with the giving of notice or the passage of time or both would constitute
a default) under, accelerate any obligations under, or conflict with, (i) its
charter or bylaws (or other organizational documents), if applicable, or any
agreement, indenture or other instrument to which it is party or by which it or
its properties are bound, (ii) any judgment, decree, order or award of any
court, governmental body or arbitrator to which it is subject, or (iii) any law,
rule or regulation applicable to it.
(d) It or he (as applicable) has carefully read the entirety of this
Agreement, knows and understands the contents hereof, and enters into this
Agreement in good faith, freely and voluntarily without undue influence,
coercion, fraud or duress.
(e) It or he (as applicable) has not sold, assigned, pledged,
hypothecated or otherwise transferred any of its or his interests in the
Actions, or either of the Actions, or any claim released hereby, to any other
person or entity.
3.2 Bring-Down and Survival of Representations and Warranties. All
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representations, warranties and agreements of each party hereto shall be deemed
to have been given again on and as of the Closing Date with the same force and
effect as if made on and as of the Closing Date and shall survive the Closing.
ARTICLE FOUR
OTHER AGREEMENTS
4.1 Further Assurances. Each party hereto shall promptly execute and
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deliver such further agreements and instruments, and take such further actions,
as the other party may reasonably request in order to carry out the purpose and
intent of this Agreement.
ARTICLE FIVE
MISCELLANEOUS
5.1 Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed given if delivered personally
or by facsimile transmission (with subsequent letter confirmation by mail) or
two days after being mailed by certified or registered mail, postage prepaid,
return receipt requested, to the parties, their successors in interest or their
assignees at the following addresses, or at such other addresses as the parties
may designate by written notice in the manner aforesaid:
If to the Xxxxxx Parties: 00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
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If to Xxxxx: Xxxxx Corporation
000 X. Xxxx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: President
5.2 Assignability and Parties in Interest. This Agreement shall not
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be assignable by any of the parties. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective permitted successors and
assigns.
5.3 Governing Law. This Agreement shall be governed by, and
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construed and enforced in accordance with, the internal substantive law, and not
the law pertaining to conflicts or choice of law, of the State of California.
5.4 Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
5.5 Complete Agreement. This Agreement is an integrated agreement
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containing the entire agreement among the parties with respect to the subject
matter hereof and shall supersede all previous oral and written and all
contemporaneous oral negotiations, commitments and understandings.
5.6 Modifications, Amendments and Waivers. This Agreement may be
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modified, amended or otherwise supplemented only by a writing signed by the
party against whom it is sought to be enforced. No waiver of any right or power
hereunder shall be deemed effective unless and until a writing waiving such
right or power is executed by the party waiving such right or power.
5.7 No Third Party Beneficiaries. Except as expressly provided in
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Sections 1.1 and 1.2 hereof, there are no third party beneficiaries under this
Agreement or intended by any party hereto.
5.8 Expenses. Each party hereto shall bear its own costs and
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expenses, including, without limitation, attorneys' fees, incurred in connection
with the Delaware Action and this Agreement.
5.9 Contract Interpretation; Construction of Agreement.
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(a) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Article, section, party and recital references are to this
Agreement unless otherwise stated.
(b) None of the parties hereto, nor their respective counsel, shall be
deemed the drafter of this Agreement for purposes of construing the provisions
of this Agreement, and all language in all parts of this Agreement shall be
construed in accordance with its fair meaning, and not strictly for or against
any party.
5.10 Effectiveness of Agreement. The "Effective Date" shall be the
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later to occur of (i) the date on which Citadel notifies Xxxxxx in writing that
Citadel's Board of Directors has approved the Stock Exchange and Settlement
Agreement of even date herewith among Citadel and the Xxxxxx Parties or (ii) the
date on which Xxxxx notifies Xxxxxx in writing
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that Craig's Board of Directors has approved this Agreement; provided, however,
that if the Effective Date does not occur on or before April 13, 1995, then this
Agreement shall automatically terminate at 11:59 p.m., Los Angeles time, on
April 13, 1995 and shall thereafter have no legal force or effect whatsoever.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
XXXXX CORPORATION, XXXXXX INVESTORS, L.P.,
A DELAWARE CORPORATION A DELAWARE PARTNERSHIP
By: /s/ S. Xxxxx Xxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
______________________________ ________________________________
Title: President Title: General Partner
XXXXXXXX X. XXXXXX, XX. FOUNDATION,
AN OHIO TRUST
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
________________________________
Title: Trustee
_____________________________
XXXXXXXX X. XXXXXX, XX.-XXX
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx X. Xxxxxx, Xx.
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