RELEASE AND COVENANT NOT TO XXX
This Release and Covenant Not to Xxx is made this 28th day of December, 2000 by
RDO Equipment Co., RDO Construction Equipment Co., their affiliates and
subsidiaries ("RDO") and Xxxxxx X. Xxxxxx ("Xxxxxx").
WHEREAS, RDO and Xxxx Deere Construction Equipment Company ("JDCEC") have
executed a Settlement Agreement and Mutual Release simultaneously herewith as to
claims arising in an arbitration action entitled Xxxx Deere Construction
Equipment Company and affiliates, RDO Equipment Co. and affiliates, and Nortrax,
L.L.C., AAA Case No. 51 180 0036000 in Chicago, Illinois ("Settlement
Agreement"); and
WHEREAS, JDCEC has unilaterally determined in its sole discretion that it will
not allow the aggregate market potential for JDCEC's products in the areas of
responsibility presently and hereafter assigned by JDCEC to RDO in North
America, with the market potential of each such area measured as of the 12-month
period ending January 1997, to exceed 7,169 units (9.9% of the total market
potential for JDCEC's products in North America, with such total market
potential measured as of the 12-month period ending January 1997) or such other
limitation, but not less than 9.9%, as determined by JDCEC in its sole
discretion (the "Market Potential Limitation"); and
NOW, THEREFORE, in consideration of JDCEC's execution of the Settlement
Agreement to which this Release and Covenant Not to Xxx is appended, the
parties' ongoing business relationship and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, RDO
and Xxxxxx, on behalf of themselves, their successors and assigns, and on behalf
of any person or entity claiming by, through, or on behalf of any of them,
hereby:
1. release and forever discharge JDCEC, its successors, and its present,
former and future assigns, directors, officers, agents, servants, and
employees, and all other persons or entities in any way affiliated with
any of them (the "Released Parties"), of and from any and all actions,
claims, demands, liabilities, rights, or causes of action, of
whatsoever kind or nature, either in law or in equity, whether known or
unknown, discovered or undiscovered, which RDO or Xxxxxx may now have
or which hereafter may arise, whether
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from prior or from future conduct, in any way arising out of or
pertaining to the Market Potential Limitation, including, without
limitation, any disapproval or withholding of approval, by JDCEC, of an
acquisition, merger, or other transaction which would result in
noncompliance with the Market Potential Limitation; and
2. covenant that they will not, collectively or individually, bring,
commence, maintain, or prosecute any action at law, proceeding in
equity, arbitration proceeding, or other legal proceeding whatsoever,
or assist any other person or entity in so doing, against any Released
Party based in whole or in part on any action, claim, demand,
liability, right, or cause of action released hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Release and Covenant
Not to Xxx on the date first above written.
RDO Equipment Co. Accepted:
Xxxx Deere Construction Equipment Company
By: /s/ Xxxxxx X. Xxxxxx
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Title: CEO By: /s/ executed
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Title: Manager, Finance Operations
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Date: 12/28/00
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RDO Construction Equipment Co.
By: /s/ Xxxxxx X. Xxxxxx
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Title: CEO
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/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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