AGREEMENT OF COMPROMISE,
SETTLEMENT AND RELEASE
Agreement made this 17th day of August, 2007, by and among Plaintiff,
Xxxxxxxxx Xxxxxx Real Estate Income Fund Inc. ("NRL"), by its duly authorized
undersigned attorneys, and Defendants, Xxxx Xxxxx Trust No. 1B (the "Lola
Trust"), Xxxxxx Xxxxxxx Trust Xx. 0X (xxx "Xxxxxx Xxxxx"), Xxxxxxxx Trust
Company, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxxx (collectively, the
"Defendants"), by their duly authorized undersigned attorneys. NRL and the
Defendants will be collectively referred to as the "Parties."
RECITALS
A. On September 10, 2004, the Lola Trust and the Xxxxxx Trust, disclosed
that they held approximately 10% of the outstanding shares of common stock, par
value $0.0001 per share, of NRL (the "Common Stock"), and commenced a partial
tender offer to purchase, for $19.89 in cash per share, up to 1,825,000
outstanding shares of Common Stock, so as to acquire up to 50.01% of the
outstanding shares of Common Stock (the "Partial Tender Offer").
B. On September 23, 2004, NRL implemented or indicated that it would
shortly implement certain defensive measures in response to the Partial Tender
Offer, including: (1) entering into a "Common Stock Purchase Agreement,"
pursuant to which NRL issued 139,535 unregistered shares of Common Stock to
Xxxxxxxxx Xxxxxx, LLC ("NBLLC") for $21.50 per share; (2) opting to have the
Maryland Control Share Acquisition Act apply to NRL; (3) adopting a "Rights
Agreement" or "poison pill;" and (4) undertaking a self tender offer for up to
943,704 shares of Common Stock at a price of $20.00 per share.
C. On September 23, 2004, NRL initiated legal action against the Defendants
in the United States District Court for the District of Maryland (the "Court"),
styled XXXXXXXXX XXXXXX REAL ESTATE INCOME FUND INC. v. XXXX XXXXX TRUST NO. 1B,
et al., Civ. No. 04-3056 AMD (the "Action"). The Complaint requested preliminary
and permanent injunctive relief barring defendants from proceeding with the
Partial Tender Offer.
D. On April 15, 2007, the Court issued a Declaratory Judgment Order in the
Action.
E. On May 2, 2007, NRL announced that it would present to its stockholders
for approval at NRL's next stockholders meeting a proposal to liquidate NRL and
distribute the net proceeds to the stockholders.
F. On May 8, 2007, the Court issued a Memorandum Opinion (together with the
April 15, 2007 Declaratory Judgment Order, the "Summary Judgment Ruling") in the
Action.
G. The Parties to this agreement, through counsel, had discussions in the
wake of the events listed above to determine if there was a potential for
resolving the Action and their differences which would be in the best interests
of the NRL stockholders and without any party admitting any liability in the
Action.
H. Concurrently with the execution of this Agreement, NBLLC and the Lola
Trust will enter into an agreement pursuant to which NBLLC will tender, and will
cause any affiliates controlled by NBLLC to tender, all of the Common Stock
owned by NBLLC or such affiliate in the Revised Tender Offer, which as of the
date of this Agreement consists of 184,183.816 shares of Common Stock.
I. As more fully set forth below, the Parties have agreed to resolve the
Action and their disputes by having the Lola Trust revise the Partial Tender
Offer upon the terms and conditions set forth in this Agreement and the
attachments to this Agreement and the regulatory filings incident to this
Agreement and related to the Revised Tender Offer (as defined herein).
TERMS
NOW, THEREFORE, for value received, the receipt and sufficiency of which
are hereby acknowledged, intending to be bound by this Agreement, the Parties
agree as follows:
1. DEFINITIONS
1.1. Action -- The Action is the proceeding pending before the United
States District Court for the District of Maryland, styled XXXXXXXXX
XXXXXX REAL ESTATE INCOME FUND INC. v. XXXX XXXXX TRUST NO. 1B, et
al., Civ. No. 04-3056 AMD.
1.2. Business Day - Business Day shall have the meaning provided in Rule
14d-1 of the Securities Exchange Act of 1934, as amended.
1.3. Closing Date -- The Closing Date is that date upon which the Lola
Trust accepts tendered shares of Common Stock for payment under and
pursuant to the terms and conditions of the Revised Tender Offer.
1.4. Court -- The Court is the United States District Court for the
District of Maryland.
1.5. Effective Date -- The Effective Date of this Agreement is that date
on which this Agreement is executed by counsel for all Parties and
all conditions set forth in Section 2 shall be satisfied or waived in
writing by counsel for all Parties.
1.6. Execution Date -- The Execution Date of this Agreement is that date
by which counsel for each of the Parties has executed this Agreement.
1.7. Liquidation Proposal -- The Liquidation Proposal is the proposal made
by NRL to its stockholders for the liquidation of NRL and the
distribution of the net proceeds to the stockholders.
1.8. MCSAA -- The MCSAA is the Maryland Control Share Acquisition Act.
1.9. NRL Board -- The Board of Directors of NRL.
1.10. NRL Independent Directors -- The directors of NRL who are not
"interested persons" of NRL, as defined in the Investment Company Act
of 1940, as amended.
1.11. Revised Tender Offer -- The Revised Tender Offer is the revised
tender offer, including a revised letter of transmittal, made by the
Lola Trust for any and all of the Common Stock, subject to a minimum
condition that after consummation of the tender offer the Lola Trust
would own a majority of the outstanding shares of NRL at a purchase
price per share of Common Stock payable in cash equal to 99.0% of
NRL's net asset value, as determined by NRL's fund administrator in
the ordinary course using its regular procedures, at the close of
NRL/Xxxxxxx Settlement Agreement Page 2
trading on the NYSE as of the Closing Date and on the other terms and
conditions set forth in Exhibit 1 to this Agreement.
1.12. Rights Plan -- The Rights Plan is the Rights Agreement between NRL
and The Bank of New York, as Rights Agent, dated as of July 16, 2007.
1.13. Special Stockholders' Meeting -- The Special Stockholders' Meeting is
the meeting of the stockholders' presently scheduled to occur on
August 28, 2007 and any adjourned session of that meeting.
2. OBLIGATIONS AND CONDITIONS
2.1. Within two Business Days of the Execution Date, the NRL Board,
including a majority of the NRL Independent Directors, shall adopt
resolutions (i) approving the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby, (ii) finding that this Agreement providing the opportunity
for the NRL common stockholders to participate in the Revised Tender
Offer is in the best interests of NRL and its stockholders, (iii)
recommending that the holders of Common Stock tender their shares of
Common Stock in the Revised Tender Offer (the "NRL Board
Recommendation"), (iv) amending the Rights Plan so that none of the
Revised Tender Offer, the execution of this Agreement or the
consummation of the Revised Tender Offer or the other transactions
contemplated by this Agreement will trigger the separation or
exercise of the Rights (as defined in the Rights Plan) or any adverse
event under the Rights Plan (namely that the Lola Trust will not be
deemed to be an "Acquiring Person" (as defined in the Rights Plan)
solely by virtue of the Revised Tender Offer or the consummation
thereof, the approval, execution, delivery, adoption or performance
of this Agreement or the consummation of any other transactions
contemplated by this Agreement), and (v) amending the bylaws of NRL
in accordance with Section 3-702(b) of the MCSAA so that the
provisions of the MCSAA will not apply to the voting rights of the
shares of Common Stock that are acquired by the Lola Trust and/or its
associates pursuant to the Revised Tender Offer (the "MCSAA Bylaw").
In furtherance of the foregoing, the NRL Board shall not adopt any
rights plan or similar arrangement, or amend, modify or revoke the
MCSAA Bylaw, prior to the Closing Date that interferes with the
transactions contemplated by the Revised Tender Offer.
2.1.1. The adoption of the resolutions set forth above in Section 2.1
shall be a condition to the Effective Date of this Agreement.
3. EFFECTIVE DATE
3.1. This Agreement shall not be binding upon the Parties until the
Effective Date, except for those obligations required to be performed
by a party after the Execution Date and prior to the Effective Date.
4. REVISED TENDER OFFER
4.1. Within two Business Days of the Effective Date of this Agreement, the
Lola Trust shall, in accordance with applicable rules under the
NRL/Xxxxxxx Settlement Agreement Page 3
Securities Exchange Act of 1934, as amended (the "1934 Act"),
announce and make the Revised Tender Offer and publish, send or give
the Revised Tender Offer to NRL common stockholders, which shall
provide for an expiration date no earlier than the 20th Business Day
following (and including the day of) the commencement of the Revised
Tender Offer. In the event that the Closing Date does not occur on or
prior to September 21, 2007, the Lola Trust shall terminate the
Revised Tender Offer and shall not commence any new tender offer.
4.2. Promptly after the date the Revised Tender Offer is first published,
sent or given to NRL stockholders, NRL shall file with the SEC an
amendment to its Solicitation/Recommendation Statement on Schedule
14D-9 that will contain, among other disclosure, the NRL Board
Recommendation.
4.3. The Lola Trust shall cause the Revised Tender Offer to be
disseminated to the holders of the Common Stock. NRL and its counsel
shall be given a reasonable opportunity to review and comment upon
the Revised Tender Offer before it is filed with the Securities and
Exchange Commission ("SEC") and disseminated to holders of Common
Stock. NRL shall cause the Schedule 14D-9 to be disseminated to
holders of Common Stock. The Lola Trust and its counsel shall be
given a reasonable opportunity to review and comment upon the
Schedule 14D-9 before it is filed with the SEC and disseminated to
holders of Common Stock. In addition, each Party shall provide the
other and its counsel with any comments that they or their counsel
may receive from time to time from the SEC or its staff with respect
to the Revised Tender Offer promptly after the receipt of such
comments, consult with the other and its counsel prior to responding
to any such comments and provide the other with copies of all such
responses. NRL shall promptly after the Effective Date furnish the
Lola Trust with mailing labels containing the names and addresses of
all record holders of Common Stock and with security position
listings of Common Stock held in stock depositories, each as of a
recent date, together with all other available listings and computer
files, including a NOBO list, containing names, addresses and
security position listings of record holders and beneficial owners of
Common Stock. Except for such steps as are necessary to disseminate
the Revised Tender Offer and any other documents necessary to
consummate the Revised Tender Offer, the Lola Trust shall hold in
confidence such information, shall use such information solely in
connection with the Revised Tender Offer, and, if the Revised Tender
Offer is terminated pursuant to this Agreement, shall promptly
deliver or cause to be delivered to NRL all copies of such
information in its possession or in the possession of its agents or
representatives.
4.4. Without the prior consent of NRL, the Lola Trust shall not (i)
decrease the per share amount or change the form of consideration
payable in the Revised Tender Offer to holders of shares of Common
Stock, (ii) decrease the number of shares of Common Stock sought to
be purchased in the Revised Tender Offer, (iii) extend or delay the
Closing Date to a date later than September 21, 2007, (iv) amend or
waive satisfaction of the condition of the Revised Tender Offer that
requires NRL stockholders to tender to the Lola Trust at least a
number of shares of Common Stock such that, immediately after the
Closing Date and upon closing of the Revised Tender Offer, the Lola
Trust would own a majority of the outstanding shares of NRL,
including the shares of Common Stock currently owned by the Lola
Trust (the "Minimum Tender Condition"), (v) impose additional
NRL/Xxxxxxx Settlement Agreement Page 4
conditions, or modify or amend the conditions, to the Revised Tender
Offer (other than to waive such tender offer conditions (other than
the Minimum Tender Condition)), or (vi) modify or amend any other
term of the Revised Tender Offer in any manner adverse to the holders
of shares of Common Stock. Notwithstanding the foregoing, the Lola
Trust may increase the per share amount payable in the Revised Tender
Offer to holders of shares of Common Stock.
4.5. The Lola Trust shall cause the depositary for the Revised Tender
Offer to provide to NRL and its counsel reports of tendered Common
Stock at the same time as reports are provided to the Lola Trust or
its representatives. NRL shall hold in confidence such information,
shall use such information solely in connection with the Revised
Tender Offer, and, if the Revised Tender Offer is terminated pursuant
to this Agreement, shall promptly deliver or cause to be delivered to
Defendants all copies of such information in its possession or in the
possession of its agents or representatives.
5. NRL STOCKHOLDERS' MEETING
5.1. There are presently two major items on the agenda of the Special
Stockholders' Meeting -- the election of directors and approval of
the Liquidation Proposal.
5.2. NRL shall convene the Special Stockholders' Meeting and, if a quorum
is present, conduct the vote for the election of directors, subject
to the pertinent terms of this Agreement. At such special meeting,
the Defendants shall vote in accordance with Section 10.2 hereof,
and, subject to Section 10.3, evidence of the proxies in respect of
such vote shall be submitted to NRL promptly following the date on
which proxy materials related to the Special Stockholders' Meeting
are first mailed to NRL stockholders.
5.3. Immediately upon completion of the election of directors on August
28, 2007, or, if a quorum is not present on August 28, 2007, NRL
shall adjourn the Special Stockholders' Meeting for thirty days.
5.4. In the event that the Closing Date of the Revised Tender Offer occurs
on or prior to September 21, 2007, NRL shall immediately withdraw the
Liquidation Proposal from consideration at any adjourned session of
the Special Stockholders' Meeting.
5.5. In the event that the Closing Date of the Revised Tender Offer does
not occur on or prior to September 21, 2007, NRL may reconvene the
Special Stockholders' Meeting in order to conduct the stockholders'
vote on the Liquidation Proposal and, if a quorum was not present on
August 28, 2007, to complete the voting for election of directors. At
such reconvened special meeting, the Defendants shall vote in
accordance with Section 10.2 hereof, and, subject to Section 10.3,
evidence of the proxies in respect of such vote shall be submitted to
NRL promptly following the date on which proxy materials related to
the Special Stockholders' Meeting are first mailed to NRL
stockholders. Promptly following receipt, NRL shall cause the
inspector of elections to hold such proxies in escrow to be voted at
such time and in the manner contemplated by this Agreement.
NRL/Xxxxxxx Settlement Agreement Page 5
6. CHANGE IN CONTROL
6.1. In the event that the Closing Date of the Revised Tender Offer
occurs, the NRL Board will call a special meeting of NRL stockholders
to vote on the election of three nominees for election to the NRL
Board to be proposed by the Lola Trust. Such special meeting shall be
held as promptly as practicable after the Closing Date and the record
date for such special meeting shall be as soon after the Closing Date
as possible.
6.2. In the event that the Closing Date of the Revised Tender Offer
occurs, NRL and its management shall provide reasonable cooperation
to the Lola Trust, its nominees and other designees, in order to
effect an orderly transition in connection with the change in control
of NRL.
6.3. Upon the election of the Lola Trust nominees as directors of NRL, (i)
all of the other then-incumbent NRL Board members shall immediately
resign, (ii) Xxxxxxxxx Xxxxxx Management Inc. shall immediately
resign as administrator to NRL, and Xxxxxxxxx Xxxxxx Management Inc.
and NBLLC will resign as investment adviser and sub-adviser to NRL
and shall provide reasonable cooperation to the Lola Trust, its
nominees and other designees, in order to effect an orderly
transition, and (iii) NRL shall waive the notice period applicable to
the resignations referred to in clause (ii) so as to make such
resignations effective immediately, subject to Xxxxxxxxx Xxxxxx
Management Inc. and NBLLC agreeing to provide assistance reasonably
requested by NRL in connection with the transition of the
administrator and adviser functions to other entities.
6.4. As promptly as practical after the election of the Lola Trust
nominees, NRL and the Lola Trust shall take all actions necessary to
change NRL's name to a name that does not include "Xxxxxxxxx Xxxxxx",
or any derivation thereof, and NBLLC shall be an express third party
beneficiary of this section.
6.5. From and after the Closing Date, NRL and any successor shall, and the
Lola Trust and any affiliated entities to whom it may transfer NRL
shares, shall cause NRL or its successor(s) to, indemnify and hold
harmless each individual who on the Closing Date is, or at any time
prior to the Closing Date was, a director, officer, employee or agent
of NRL (each, an "INDEMNITEE" and, collectively, the "INDEMNITEES")
with respect to all claims, liabilities, losses, damages, judgments,
fines, penalties, costs (including amounts paid in settlement or
compromise) and expenses (including fees and expenses of legal
counsel) in connection with any action or proceeding (whether civil,
criminal, administrative or investigative), whenever asserted, based
on or arising out of, in whole or in part, acts or omissions by an
Indemnitee in the Indemnitee's capacity as a director, officer,
employee or agent of NRL or taken at the request of NRL, to the
extent permitted under NRL's charter and bylaws or to the extent
required by the indemnification agreements between NRL and any such
Indemnitee, each as in effect on the date of this Agreement. Without
limiting the foregoing, NRL shall not amend, repeal or otherwise
modify, and the Lola Trust shall not cause to be amended, repealed or
otherwise modified, the provisions of the articles of incorporation
and bylaws of NRL with respect to limitation of liabilities of
directors and officers and indemnification, and such indemnification
agreements in effect as of the date of this Agreement in a manner
NRL/Xxxxxxx Settlement Agreement Page 6
that would adversely affect the rights thereunder of the Indemnitees.
In addition, from and after the Closing Date, NRL shall, and the Lola
Trust shall cause NRL to, pay any expenses (including fees and
expenses of legal counsel) of any Indemnitee under this section
(including in connection with enforcing the indemnity and other
obligations provided for in this section) as incurred to the extent
permitted under NRL's charter and bylaws or to the extent required by
the indemnification agreements between NRL and any such Indemnitee,
each as in effect on the date of this Agreement; provided that the
individual Indemnitee to whom expenses are advanced provides an
undertaking to repay such advances to the extent required thereby.
The provisions of this section are (i) intended to be for the benefit
of, and shall be enforceable by, each Indemnitee, his or her heirs
and his or her representatives (it being expressly agreed that such
persons shall be third-party beneficiaries of this section) and (ii)
in addition to, and not in substitution for, any other rights to
indemnification or contribution that any such individual may have.
The obligations of the Lola Trust and NRL under this section shall
not be terminated or modified in such a manner as to adversely affect
the rights of any Indemnitee unless the affected Indemnitee shall
have consented in writing to such termination or modification.
7. NO ADMISSIONS
7.1. NRL and Defendants have denied, and continue to deny, that they have
committed any wrongdoing, violations of law, or breaches of duty, and
their execution of this Agreement and implementation of the
settlement, compromise and release effected thereby shall not
constitute, or be admissible into evidence as, an admission of any
wrongdoing by NRL or any of the Defendants.
7.2. Each of NRL and the Defendants represents that it is entering into
this Settlement solely because the proposed settlement would
eliminate the burden, expense, and distraction of further litigation.
8. RESTRICTION ON SECURITIES TRANSACTIONS PRIOR TO CLOSING
8.1. Attached to this Agreement as Exhibit 2 is a list of securities held
by NRL as of July 31, 2007, which has been previously publicly
disclosed.
8.2. As of the Effective Date and until the first to occur of the Closing
Date of the Revised Tender Offer or the approval of the Liquidation
Proposal by the NRL stockholders, neither Defendants nor anyone
acting on behalf of any Defendant shall sell any security listed on
Exhibit 2.
9. DISPOSITION OF THE ACTION
9.1. Neither NRL nor any of the Defendants will take an appeal from or
otherwise seek to challenge or vacate the Summary Judgment Ruling in
the Action. The Parties reserve their respective rights to argue
their positions (including arguing error by the Court in the Action)
in any future litigation and proceedings other than the Action.
NRL/Xxxxxxx Settlement Agreement Page 7
9.2. The Parties shall each bear their own respective costs, attorneys'
fees, and expenses incurred in relation to the Action and the
implementation of this settlement and shall waive any right to
recover costs, attorneys' fees, and expenses from any other Party or
person, other than as may be provided under an insurance policy
providing coverage therefor. Following the transfer of control as
provided for in Section 6.3, the Lola Trust will cause NRL or its
successor(s) to pay all invoices from NRL's attorneys for services
rendered through the date of the transfer of control.
9.3. Concurrently with the execution of this Agreement, pursuant to F.R.
Civ. P. 41(a), the parties to the Action, by their respective
counsel, will execute a Stipulation of Dismissal with Prejudice, in
the form annexed as Exhibit 3 hereto, dismissing the Action with
prejudice, with each party to bear its own costs and with a waiver of
any costs, fees, and sanctions previously awarded by the Court, it
being understood that any such award of costs, fees and sanctions
heretofore issued by the Court is not final and would, in the absence
of this settlement, be subject to challenge and possible reversal on
appeal.
9.4. At any time after the Effective Date, any party may file the executed
Stipulation of Dismissal with Prejudice with the Court.
10. PROVISIONS FOR LIQUIDATION IN THE EVENT THE REVISED TENDER OFFER IS NOT
COMPLETED
10.1. The provisions of this section relating to the Liquidation Proposal
apply only in the event that NRL is permitted by this Agreement to
hold the adjourned Special Stockholders' Meeting for the purpose of
voting on the Liquidation Proposal. In the event the Closing Date of
the Revised Tender Offer occurs on or prior to September 21, 2007,
then the provisions of this section relating to the Liquidation
Proposal shall be null and void and of no force or effect whatsoever.
Notwithstanding the foregoing, the provisions of this section
relating to the vote for election of directors shall be binding in
all respects.
10.2. At the Special Stockholders' Meeting and any adjournment(s) thereof,
all shares of Common Stock that are owned, controlled, or with
respect to which voting power or discretion is held as of the record
date for the Special Stockholders' Meeting, by one or more of the
Defendants or by a person or entity, whether now existing or
organized in the future, affiliated with a Defendant or under the
control of one or more Defendants, including, without limitation, the
Lola Trust, will be voted:
10.2.1. For the Liquidation Proposal, and
10.2.2. For management's nominees for election as directors.
10.3. The proxies evidencing such votes shall not be superseded, revoked or
withdrawn by any means. Defendants shall notify NRL's undersigned
counsel of the number of shares of Common Stock so voted and the name
of the holder as shown on the relevant proxy card(s). If shares of
Common Stock are held in street name, the notification shall so
specify, indicating the name of the record holder and providing a
copy of the voting instruction issued to such record holder. For
purposes of this Agreement, shares of Common Stock controlled by
Defendants shall be deemed to include (but not be limited to) all
NRL/Xxxxxxx Settlement Agreement Page 8
shares of Common Stock disclosed in the Revised Tender Offer as owned
by the Lola Trust.
10.4. In the event that this section is triggered, no Defendant, and no
person or entity, whether now existing or organized in the future,
affiliated with a Defendant or under the control of one or more
Defendants, including, without limitation, the Lola Trust, will
solicit, recommend, advise or urge, formally or informally, publicly
or privately, anyone to vote against the Liquidation Proposal at the
adjourned Special Stockholders' Meeting and any adjournment(s)
thereof.
11. RELEASES
11.1. This Agreement shall completely discharge, settle, release, and bar
all claims, rights, demands, suits, matters, issues or causes of
action, whether known or unknown, absolute or contingent, liquidated
or unliquidated, suspected or unsuspected, xxxxxx or inchoate, at
law, in equity or otherwise, whether or not asserted, threatened,
alleged or litigated
11.1.1. of NRL against any of the Defendants and any of the
Defendants' present or former officers, directors, employees,
agents, attorneys, advisors, insurers, accountants, financial
advisors, trustees, beneficiaries, commercial bank lenders,
persons who provided fairness opinions, investment bankers,
associates, representatives, affiliates, parents, subsidiaries
(including the directors and officers of such affiliates,
parents, and subsidiaries), general partners, limited
partners, partnerships, heirs, executors, personal
representatives, estates, administrators, successors and
assigns, and
11.1.2. of Defendants against NRL and any of its present or former
officers, directors, employees, agents, attorneys, advisors,
insurers, accountants, financial advisors, investment advisers
and sub-advisers, administrators, trustees, commercial bank
lenders, persons who provided fairness opinions, investment
bankers, associates, representatives, affiliates, parents,
subsidiaries (including the directors and officers of such
affiliates, parents, and subsidiaries), general partners,
limited partners, partnerships, heirs, executors, personal
representatives, estates, administrators, successors and
assigns.
11.2. The releases provided for by this Agreement shall be applicable and
effective as to all claims whether under state, federal or foreign
law, including the federal securities laws, or under common law or in
equity, and whether raised directly, derivatively, representatively
or in any other capacity, that are asserted in the Action or that
arise out of or relate in any way to the acts, facts, subject matter
or events referenced or alleged in the Action, including, but not
limited to, the Tender Offer and NRL's defense thereof (the "Settled
Claims"); provided, however, that nothing herein shall be deemed to
release the rights of any party or releasee to enforce the terms of
this Agreement.
11.3. The release set forth in this Agreement extends to claims that a
releasor does not know or suspect to exist at the time of the
release, which, if known, might have affected the decision to enter
into the release. Each releasor shall be deemed to waive any and all
NRL/Xxxxxxx Settlement Agreement Page 9
provisions, rights and benefits conferred by any law of the United
States or any state or territory of the United States or any other
jurisdiction, or principle of common law, which governs or limits a
person's release of unknown claims. Each releasor shall be deemed to
waive and relinquish, to the full extent permitted by law, the
provisions, rights and benefits of ss. 1542 of the California Civil
Code which provides:
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 DEBTOR.
11.4. In addition, each releasor shall be deemed to waive and relinquish
any and all provisions, rights and benefits conferred by any law of
any state or territory of the United States or any other
jurisdiction, or principle of common law, which is similar,
comparable or equivalent to California Civil Code ss. 1542. Each
releasor acknowledges that it may discover facts in addition to or
different from those that it now knows or believes to be true with
respect to the subject matter of this release, but that it is the
intention of each releasor to fully, finally and forever settle and
release any and all claims released hereby, known or unknown,
suspected or unsuspected, which now exist, or heretofore existed, or
may hereafter exist, without regard to the subsequent discovery or
existence of such additional or different facts.
12. MISCELLANEOUS
12.1. This Agreement may be modified or amended only by a writing signed by
an authorized representative of the parties hereto.
12.1.1. No representations, warranties, or inducements have been made
by any party hereto concerning this Agreement other than those
contained and memorialized herein.
12.1.2. This Agreement was the product of mutual bargaining between
and among the parties and, therefore, will not be construed
against one party or another.
12.1.3. This Agreement supersedes all negotiations, whether oral or
written, and statements made before or after its acceptance.
12.1.4. This Agreement and the Exhibits constitute the entire
agreement of the Parties concerning the subject matter of this
Agreement, with the exception of the agreed Protective Order
filed in the Action, which shall continue to apply.
12.2. Any failure by any party to insist upon the strict performance by any
other party of any of the provisions of this Agreement shall not be
deemed a waiver of any of the provisions hereof, and such party,
notwithstanding such failure, shall have the right thereafter to
insist upon the strict performance of any and all of the provisions of
this Agreement to be performed by such other party.
NRL/Xxxxxxx Settlement Agreement Page 10
12.3. No waiver, express or implied, by any party of any breach or default
by any other party in the performance by the other party of its
obligations under this Agreement shall be deemed or construed to be a
waiver of any other breach or default, whether prior, subsequent, or
contemporaneous, under this Agreement.
12.4. This Agreement will be executed by the undersigned counsel for the
parties, each of whom represents and warrants that he has fully
reviewed the substance of this Agreement with his client(s) and has
authority from his client(s) to enter into this Agreement on their
behalf.
12.5. Neither the existence of this Agreement, nor the contents of this
Agreement, nor any negotiations, statements or proceedings in
connection therewith, shall be deemed a presumption, concession or
admission, or evidence of a presumption, concession or admission, by
any party in the Action of any fault, liability or wrongdoing as to
any facts or claims alleged or asserted in the Action, or any other
action or proceeding (whether civil, criminal or administrative)
except for such proceedings as may be necessary to effect the
provisions of this Agreement.
12.5.1. Neither the existence of the Agreement, nor its contents, nor
any negotiations, statements or proceedings in connection
therewith, shall be offered or admitted in evidence or
referred to, interpreted, construed, invoked, or otherwise
used by any person for any purpose in the Action or in any
other action, litigation or proceeding (whether civil,
criminal or administrative) except for such proceedings as
may be necessary to effect the provisions of this Agreement.
12.5.2. Neither the existence of the Agreement, nor its contents, nor
any negotiations, statements or proceedings in connection
therewith, shall be offered or admitted in evidence or
referred to, interpreted, construed, invoked, or otherwise
used against NRL or any of the Defendants as evidence of a
presumption, concession or admission of any fault,
misrepresentation or omission with respect to any statement
or written document approved or made by NRL or any of the
Defendants.
12.5.3. This provision shall remain in force in the event the
Settlement is terminated.
12.6. This Agreement shall be governed by, and construed in accordance with
the laws of the State of Maryland, without regard to the principles
of conflicts of law therein. Should any conflicts arise requiring
judicial determination or enforcement of the terms of this Agreement,
venue shall lie in the United States District Court for the District
of Maryland.
12.7. The Parties represent that they fully understand all of the terms,
covenants, conditions, provisions and obligations of this Agreement,
and each believes that this Agreement is a fair, just and reasonable
resolution of the issues between the Parties.
12.8. Each signatory below enters into this Agreement willingly,
voluntarily, without coercion, with full knowledge of its rights and
obligations under this Agreement.
NRL/Xxxxxxx Settlement Agreement Page 11
12.9. Each signatory below acknowledges that it has worked together with
each other Party mutually to craft the Agreement's terms and
conditions. Each signatory below further acknowledges that, given
this joint drafting effort, no ambiguity, whether actual or
perceived, shall be interpreted against any signatory below or shall
result in a presumption or burden shifting against any signatory
below as the primary drafter of the Agreement.
12.10. This Agreement shall inure to the benefit of and be binding upon the
Parties and their respective heirs, personal representatives,
successors and assigns.
12.11. This Agreement may be executed simultaneously in one or more
counterparts and via facsimile, each of which, when so executed and
delivered, shall be deemed an original, but all of which together
constitute one instrument. If this Agreement is executed in
counterparts, then the Parties shall exchange a sufficient number of
such counterparts so that each may have a copy of this Agreement
that bears the original signatures of all Parties to this Agreement.
In making proof of this Agreement, it shall not be necessary to
produce or account for all counterparts.
12.12. The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or
intent of this Agreement or any of the provisions hereof.
12.13. Should any provision of this Agreement be held to be illegal or
unenforceable by a court of competent jurisdiction, it shall be
deemed severed from this Agreement, and the remaining provisions
shall remain fully enforceable.
13. NOTICES
13.1. Any notices hereunder shall be delivered by email or facsimile, with
copy by ordinary mail, directed as follows:
13.2. To NRL by delivery to:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Milbank, Tweed, Xxxxxx & XxXxxx, LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Email: xxxxxxxxxxx@xxxxxxx.xxx
Fax: (000) 000-0000
and
NRL/Xxxxxxx Settlement Agreement Page 12
Xxxxxx Xxxxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Email: xxxxxx.xxxxxxxx@xxxxxxx.xxx
Fax: (000) 000-0000
and
Xxxxx Xxxxxx, Jr., Esq.
DLA Piper US LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Email: xxxxx.xxxxxx@xxxxxxxx.xxx
Fax: (000) 000-0000
With a copy by mail to NRL c/x Xxxxxxxxx Xxxxxx Management Inc., at
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000.
13.3. To Defendants by delivery to
Xxxxx X. Xxxxx, Esq.
Arent Fox LLP
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Email: xxxxx.xxxxx@xxxxxxxx.xxx
Fax: (000) 000-0000
13.4. Delivery shall be deemed to be effective on the next Business Day
after the date of email or facsimile transmission.
NRL/Xxxxxxx Settlement Agreement Page 13
14. SIGNATURES
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
--------------------------------------------------------------------------------
ARENT FOX LLP MILBANK, TWEED, XXXXXX &
XxXXXX LLP
By:________________
Xxxxx X. Xxxxx, Esq. By:____________________
0000 Xxxxxxxxxxx Xxxxxx, X.X. Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxxxxx, X.X. 00000-0000 0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
On behalf of Defendants
On behalf of NRL
--------------------------------------------------------------------------------
NRL/Xxxxxxx Settlement Agreement Signature Page
