MUTUAL RELEASE
Exhibit
99.3
This
Mutual Release (“Release”) is made and entered into as of the 30 day of May,
2008, by and between Whitestone REIT (“Whitestone REIT”), Whitestone REIT
Operating Partnership, L.P. (“Whitestone REIT OP”), Xxxxx X. Xxxxxxxxxx
(“Xxxxxxxxxx”), and Xxxx X. Xxx (“Dee”) and Xxxxx X. Xxxxxxx (“Xxxxxxx”),
Xxxxxxx Management, L.P. (“Xxxxxxx Management”), and Xxxxxxx Income REIT, as
successor-in-interest of Xxxxxxx Management (“Xxxxxxx Income
REIT”). Whitestone REIT, Whitestone REIT OP, Xxxxxxxxxx, Xxx,
Xxxxxxx, Xxxxxxx Management, and Xxxxxxx Income REIT are referred to herein
collectively as the “Parties” and each individually as a “Party.”
WHEREAS,
Whitestone REIT and Whitestone REIT OP have asserted certain claims and causes
of action against Xxxxxxx and Xxxxxxx Management, Xxxxxxx and Xxxxxxx Management
have asserted counter-claims against Whitestone REIT and Whitestone REIT OP, and
Xxxxxxxxxx and Dee have asserted third-party claims against Xxxxxxx and Xxxxxxx
Management, in litigation in Houston, Texas, styled Whitestone REIT and Whitestone REIT
Operating Partnership, X.X. x. Xxxxx X. Xxxxxxx and Xxxxxxx Management,
L.P., Cause Number 2006-63041, in the 333rd Judicial District Court of
Xxxxxx County, Texas (the “State Litigation”) related to the termination of
Xxxxxxx as president and CEO of Whitestone REIT, the termination and expiration
of certain agreements between Whitestone REIT, Whitestone REIT OP, and Xxxxxxx
Management, and certain statements made by Xxxxxxx about Xxxxxxxxxx and
Xxx;
WHEREAS,
Whitestone REIT has asserted certain claims and causes of action against Xxxxxxx
and Xxxxxxx Management, and Xxxxxxx and Xxxxxxx Management have asserted
counter-claims against Whitestone REIT, in litigation in Houston, Texas, styled
Whitestone REIT x. Xxxxx X.
Xxxxxxx and Xxxxxxx Management, L.P., Cause Number 4:06-CV-3897, in the
United States District Court for the Southern District of Texas (the “Federal
Litigation”) related to certain consent solicitation statements filed by Xxxxxxx
and certain amendments to the declaration and bylaws of Whitestone
REIT;
WHEREAS,
the Parties desire to avoid the expense and burden of continued litigation and
to resolve fully and finally all disputes between and among them;
NOW,
THEREFORE, in consideration of the foregoing and other mutual consideration,
receipt of which is hereby acknowledged by the Parties hereto, and intending to
be legally bound, the Parties hereby agree as follows:
TERMS
1. Dismissal
of Xxxxxxx and Xxxxxxx Management. Within five (5) days of the execution of
this Release by all Parties, Whitestone REIT, Whitestone REIT OP, Xxxxxxxxxx,
and Dee will file a Notice of Dismissal with the 333rd Judicial District Court,
dismissing with prejudice all of their claims against Xxxxxxx and Xxxxxxx
Management in the State Litigation. Within five (5) days of the
execution of this Release by all Parties, Whitestone REIT will file a Motion to
Dismiss with the United States District Court for the Southern District of
Texas, dismissing with prejudice all of its claims against Xxxxxxx and Xxxxxxx
Management in the Federal Litigation.
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2. Dismissal
of Whitestone REIT and Whitestone REIT OP. Within five (5)
days of the execution of this Release by all Parties, Xxxxxxx and Xxxxxxx
Management will file a Notice of Dismissal with the 333rd Judicial District
Court, dismissing with prejudice all of their claims against Whitestone REIT and
Whitestone REIT OP in the State Litigation. Within five (5) days of the execution of
this Release by all Parties, Xxxxxxx and Xxxxxxx Management will file a Motion
to Dismiss with the United States District Court for the Southern District of
Texas, dismissing with prejudice all of their claims against Whitestone REIT in
the Federal Litigation.
3. Release
of Xxxxxxx. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Whitestone REIT, Whitestone REIT OP, Xxxxxxxxxx, and Xxx, on behalf of their
past, present, and future directors, trustees, officers, shareholders, general
partners, limited partners, members, employees, parents, subsidiaries,
affiliates, successors, assigns, and all predecessors and related entities, and
any person claiming by or under any and all of them, do hereby forever release,
discharge, and hold harmless Xxxxxxx and his past, present, and future
directors, trustees, officers, shareholders, general partners, limited partners,
members, employees, attorneys (including all attorneys who represented Xxxxxxx
in either the Federal Litigation or the State Litigation), parents,
subsidiaries, affiliates, successors, assigns, predecessors and related
entities, of any and all of them from any and all claims, demands, or suits by
Whitestone REIT, Whitestone REIT OP, Xxxxxxxxxx, or Dee, known or unknown, fixed
or contingent, liquidated or unliquidated, arising from or related to the
subject matter of the State Litigation or the Federal Litigation.
4. Release
of Xxxxxxx Management. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Whitestone REIT, Whitestone REIT OP, Xxxxxxxxxx, and Dee, on behalf of their
past, present, and future directors, trustees, officers, shareholders, general
partners, limited partners, members, employees, parents, subsidiaries,
affiliates, successors, assigns, and all predecessors and related entities, and
any person claiming by or under any and all of them, does hereby forever
release, discharge, and hold harmless Xxxxxxx Management and its past, present,
and future directors, trustees, officers, shareholders, general partners,
limited partners, employees, attorneys (including all attorneys who represented
Xxxxxxx Management in either the Federal Litigation or the State Litigation),
affiliates, successors (including without limitation Xxxxxxx Income REIT),
assigns, predecessors and related entities, and any person claiming by or under
any and all of them from any and all claims, demands, or suits by Whitestone
REIT, Whitestone REIT OP, Xxxxxxxxxx, or Dee, known or unknown, fixed or
contingent, liquidated or unliquidated, arising from or related to the subject
matter of the State Litigation or the Federal Litigation.
5. Release
of Xxxxxxx Income REIT. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Whitestone REIT, Whitestone REIT OP, Xxxxxxxxxx, and Dee, on behalf of their
past, present, and future directors, trustees, officers, shareholders, general
partners, limited partners, members, employees, parents, subsidiaries,
affiliates, successors, assigns, and all predecessors and related entities, and
any person claiming by or under any and all of them, does hereby forever
release, discharge, and hold harmless Xxxxxxx Income REIT and its past, present,
and future directors, trustees, officers, shareholders, general partners,
limited partners, employees, attorneys (including all attorneys who represented
Xxxxxxx Income REIT in either the Federal Litigation or the State Litigation),
affiliates, successors, assigns, predecessors and related entities (including
without limitation Xxxxxxx Management), and any person claiming by or under any
and all of them from any and all claims, demands, or suits by Whitestone REIT,
Whitestone REIT OP, Xxxxxxxxxx, or Dee, known or unknown, fixed or contingent,
liquidated or unliquidated, arising from or related to the subject matter of the
State Litigation or the Federal Litigation.
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6. Release
of Whitestone REIT. For good, valuable, and
sufficient consideration receipt of which is hereby acknowledged, Xxxxxxx and
Xxxxxxx Management, on behalf of their past, present, and future directors,
trustees officers, shareholders, general partners, limited partners, members,
employees, parents, subsidiaries, affiliates, successors (including without
limitation Xxxxxxx Income REIT), assigns, and all predecessors and related
entities, and any person claiming by or under any and all of them, does hereby
forever release, discharge, and hold harmless Whitestone REIT and its past,
present, and future directors, trustees, officers, shareholders, general
partners, limited partners, members, employees, attorneys (including all
attorneys who represented Whitestone REIT in either the Federal Litigation or
the State Litigation), parents, subsidiaries, affiliates, successors, assigns,
predecessors and related entities, of any and all of them from any and all
claims, demands, or suits by Xxxxxxx or Xxxxxxx Management, known or unknown,
fixed or contingent, liquidated or unliquidated, arising from or related to the
subject matter of the State Litigation or the Federal Litigation.
7. Release
of Whitestone REIT OP. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Xxxxxxx and Xxxxxxx Management, on behalf of their past, present, and future
directors, trustees, officers, shareholders, general partners, limited partners,
members, employees, parents, subsidiaries, affiliates, successors (including
without limitation Xxxxxxx Income REIT), assigns, and all predecessors and
related entities, and any person claiming by or under any and all of them, does
hereby forever release, discharge, and hold harmless Whitestone REIT OP and its
past, present, and future directors, trustees, officers, shareholders, general
partners, limited partners, members, employees, attorneys (including all
attorneys who represented Whitestone REIT OP in either the Federal Litigation or
the State Litigation), parents, subsidiaries, affiliates, successors, assigns,
predecessors and related entities, of any and all of them from any and all
claims, demands, or suits by Xxxxxxx or Xxxxxxx Management, known or unknown,
fixed or contingent, liquidated or unliquidated, arising from or related to the
subject matter of the State Litigation or the Federal Litigation.
8. Release
of Xxxxxxxxxx. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Xxxxxxx and Xxxxxxx Management, on behalf of their past, present, and future
directors, trustees, officers, shareholders, general partners, limited partners,
members, employees, parents, subsidiaries, affiliates, successors (including
without limitation Xxxxxxx Income REIT), assigns, and all predecessors and
related entities, and any person claiming by or under any and all of them, does
hereby forever release, discharge, and hold harmless Xxxxxxxxxx and his past,
present, and future directors, trustees, officers, shareholders, general
partners, limited partners, members, employees, attorneys (including all
attorneys who represented Xxxxxxxxxx in either the Federal Litigation or the
State Litigation), parents, subsidiaries, affiliates, successors, assigns,
predecessors and related entities of any and all of them from any and all
claims, demands, or suits by Xxxxxxx or Xxxxxxx Management, known or unknown,
fixed or contingent, liquidated or unliquidated, arising from or related to the
subject matter of the State Litigation or the Federal Litigation.
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9. Release
of Dee. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Xxxxxxx and Xxxxxxx Management, on behalf of their past, present, and future
directors, trustees, officers, shareholders, general partners, limited partners,
members, employees, parents, subsidiaries, affiliates, successors (including
without limitation Xxxxxxx Income REIT), assigns, and all predecessors and
related entities, and any person claiming by or under any and all of them, does
hereby forever release, discharge, and hold harmless Dee and his past, present,
and future directors, trustees, officers, shareholders, general partners,
limited partners, members, employees, attorneys (including all attorneys who
represented Dee in either the Federal Litigation or the State Litigation),
parents, subsidiaries, affiliates, successors, assigns, predecessors and related
entities of any and all of them from any and all claims, demands, or suits by
Xxxxxxx or Xxxxxxx Management, known or unknown, fixed or contingent, liquidated
or unliquidated, arising from or related to the subject matter of the State
Litigation or the Federal Litigation.
10. Release
of Xxxx Xxxxx & Xxxx PLC. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Xxxxxxx and Xxxxxxx Management, on behalf of their past, present, and future
directors, trustees, officers, shareholders, general partners, limited partners,
members, employees, parents, subsidiaries, affiliates, successors (including
without limitation Xxxxxxx Income REIT), assigns, and all predecessors and
related entities, and any person claiming by or under any and all of them, does
hereby forever release, discharge, and hold harmless Xxxx Xxxxx & Xxxx PLC
and all attorneys employed by Xxxx Xxxxx & Xxxx, including without
limitation Xxxx X. Good, and their past, present, and future directors,
trustees, officers, shareholders, general partners, limited partners, members,
employees, parents, subsidiaries, affiliates, successors, assigns, predecessors
and related entities of any and all of them from any and all claims, demands, or
suits by Xxxxxxx and Xxxxxxx Management, known or unknown, fixed or contingent,
liquidated or unliquidated, arising from or related to the subject matter of the
State Litigation or the Federal Litigation.
11. Retraction
of SEC Filings. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Xxxxxxx and Xxxxxxx Management, on behalf of their past, present, and future
directors, trustees, officers, shareholders, general partners, limited partners,
members, employees, parents, subsidiaries, affiliates, successors (including
without limitation Xxxxxxx Income REIT), assigns, and all predecessors and
related entities, and any person claiming by or under any and all of them, does
hereby forever retract the statements made in the three documents filed with the
Securities and Exchange Commission (“SEC”) that were part of the Federal
Litigation, as follows: (a) Preliminary Proxy Statement of Xxxxxxx and Xxxxxxx
Management filed November 29, 2006, (b) Definitive Additional Materials filed
December 1, 2006, and (c) Non-Management Revised Preliminary Proxy Soliciting
Material of Xxxxxxx and Xxxxxxx Management filed February 1, 2007.
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12. Release
of Paragon and Its Trustees. For good,
valuable, and sufficient consideration receipt of which is hereby acknowledged,
Xxxxxxx and Xxxxxxx Management, on behalf of their past, present, and future
directors, trustees, officers, shareholders, general partners, limited partners,
members, employees, parents, subsidiaries, affiliates, successors (including
without limitation Xxxxxxx Income REIT), assigns, and all predecessors and
related entities, and any person claiming by or under any and all of them, does
hereby forever release, discharge, and hold harmless Paragon Real Estate Equity
and Investment Trust (“Paragon”) and its past, present, and future directors,
trustees, officers, shareholders, general partners, limited partners, members,
employees, attorneys, parents, subsidiaries, affiliates, successors, assigns,
predecessors and related entities of any and all of them from any and all
claims, demands, or suits by Xxxxxxx or Xxxxxxx Management, known or unknown,
fixed or contingent, liquidated or unliquidated, arising from or related to the
subject matter of the State Litigation or the Federal Litigation.
13. No Prior
Transfer of Claims.
By executing this Release, each Party represents and warrants that it has
not sold, assigned, transferred, or otherwise conveyed any of the claims, rights
or causes of action that it had, has, or may have against any other
Party.
14. Authority. Each Party to
this Release represents and warrants that the execution and delivery of this
Release and the performance of such Party’s obligations hereunder will not
violate its certificate of incorporation or bylaws or partnership agreement and
will not conflict with or cause a breach under any agreement to which it is a
party or by which its assets may be bound; and that each person signing this
Release has the power and authority to sign this Release and to bind the entity
on whose behalf it is signing and to carry out its obligations
hereunder.
15. Presumption. This Release has
been drafted by the Parties hereto and shall not be construed against one Party
in favor of any other Party by reason of any presumption concerning the Party
drafting this Release.
16. Cooperation. The Parties agree
to cooperate fully to execute any and all necessary supplementary documents and
to take all additional steps or actions which may be necessary or appropriate in
order to give full force and effect to the terms and intent of this
Release.
17. No
Admissions.
Nothing contained herein shall be deemed an admission by any Party
hereto; provided,
however, any indemnity right that exists under the Amended and Restated
Management Agreement, dated September 1, 2004, between Xxxxxxx Commercial
Properties REIT and Xxxxxxx REIT Operating Partnership, L.P., on one side, and
Xxxxxxx Management, on the other side, is not eliminated by this
provision.
18. Counterparts. This Release may
be executed by the Parties in one or more facsimile counterparts and such
facsimile counterparts shall each be deemed an original signature for all
purposes including interpretation under governing law.
IN WITNESS THEREOF, the
Parties hereto have caused this Release to be duly executed as of the day and
year first written below.
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Date: ________________________
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Whitestone
REIT
By: ________________________
Name: Xxxxx
X. Xxxxxxxxxx
Title:
Chairman and CEO
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Date: ________________________
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Whitestone
REIT OP
By: ________________________
Name: Xxxxx
X. Xxxxxxxxxx
Title:
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Date: ________________________
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Xxxxx
X. Xxxxxxxxxx
By: _________________________
Name: Xxxxx X. Xxxxxxxxxx
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Date: ________________________
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Xxxx
X. Xxx
By: _________________________
Name: Xxxx X. Xxx
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Date: ________________________
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Paragon
Real Estate Equity and Investment Trust
By: _________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and CEO
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Date: ________________________
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Xxxxx
X. Xxxxxxx
By: _________________________
Name: Xxxxx X. Xxxxxxx
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Date: ________________________
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Xxxxxxx
Management
By: _________________________
Name: Xxxxx X. Xxxxxxx
Title:
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Date: ________________________
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Xxxxxxx
Income REIT
By: _________________________
Name: Xxxxx X. Xxxxxxx
Title:
Chairman and CEO
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