EXHIBIT 10.1
SETTLEMENT AND RELEASE AGREEMENT
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This SETTLEMENT AND RELEASE AGREEMENT (this "Agreement") is made and
entered into as of December 21, 2007, by and between Xxxxxx Xxxxxx, Ltd., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxxxxxx ("Xxxxxxxxx").
WHEREAS, the parties hereto are parties to that certain Membership
Interest Purchase Agreement (the "Purchase Agreement"), dated as of May 16,
2007, by and among the Company and the members (the "Members") of Compo
Enhancements, LLC ("Compo") and that certain Earn-Out Agreement, dated as of May
16, 2007, by and among the Company and the Members (the "Earn-Out Agreement"),
which were entered into in connection with the Company's acquisition of the
outstanding ownership interests of Compo (the "Transaction").
WHEREAS, the parties hereto desire to set forth these and other
agreements as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, the parties hereby agree as follows:
Section 1. Settlement. The parties hereby agree that, prior to the
consummation of the Transaction, all amounts payable by the Company to Compo
were correctly calculated and paid in accordance with the arrangement between
Compo and the Company that existed prior to the consummation of the Transaction
(the "Pre-Transaction Arrangement"), and that no additional payments are
required by either Compo or the Company in respect of the Pre-Transaction
Arrangement. In full and final resolution and settlement of (i) all disputes
relating to the Pre-Transaction Arrangement and (ii) all obligations of the
Company to Xxxxxxxxx, including any payment obligations, pursuant to the
Earn-Out Agreement, and in consideration of the release contained in Section 2
hereof, the Company hereby (a) forgives all amounts in respect of the Working
Capital Refund (as such term is defined in the Purchase Agreement) that
Xxxxxxxxx is obligated to pay to the Company pursuant to Section 2.3(b)(ii) of
the Purchase Agreement, and (b) agrees to make all of the Settlement Payments
(as hereinafter defined). The parties agree that, as of and following the
execution of this Agreement, the Company shall have no further liability or
obligation to Xxxxxxxxx pursuant to the Earn-Out Agreement and Xxxxxxxxx shall
have no further rights, titles, benefits, or interests in, to or under the
Earn-Out Agreement. For purposes of this Section 1, the term "Settlement
Payments" means, collectively, (x) a lump-sum payment of $600,000, in cash, to
Xxxxxxxxx which shall be made on June 30, 2008; provided, that if Xxxxxxxxx is
terminated without Cause (as such term is defined in Xxxxxxxxx'x then current
employment agreement with the Company), such payment shall be made within ten
(10) days of such termination, (y) the payment of all United States custom fees
due by Compo for the Company's imports, and (z) within seven days after the date
hereof, (i) the payment of $20,475.83 to WEEKS-LERMAN GROUP, LLC and $40,000 to
The Preschoolians Company in respect of amounts previously paid by The
Preschoolians Company to DHL and credited to the Company's DHL account, and (ii)
the delivery to Xxxxxxxxx of a check payable to DHL in the amount of $23,531.92
for delivery to DHL.
Section 2. Xxxxxxxxx Release. Xxxxxxxxx, on behalf of himself, his
employees, agents and representatives, and their respective successors and
assigns, past, present and future (the "Xxxxxxxxx Releasing Parties"), hereby
releases and forever discharges the Company, its officers, directors, employees,
agents and representatives, and their respective successors and assigns, past,
present and future (the "Xxxxxxxxx Released Parties"), from any and all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims,
liabilities, obligations, expenses, losses and demands whatsoever, in law,
admiralty, equity or otherwise (collectively, "Claims"), (i) against the
Xxxxxxxxx Released Parties which the Xxxxxxxxx Releasing Parties have ever had,
now have, or hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing whatsoever based upon, in connection with, or arising
from or related to (a) the parties' respective rights and obligations pursuant
to the Earn-Out Agreement and pursuant to the Purchase Agreement and (b) the
Pre-Transaction Arrangement, and (ii) against the Xxxxxxxxx Released Parties in
connection with, arising from or related to all other matters and events that
occurred prior to the date hereof.
Section 3. Company Release. The Company, on behalf of itself and its
shareholders, directors, officers, employees, agents and representatives, and
their respective heirs, executors, administrators, successors and assigns, past,
present and future (the "Company Releasing Parties"), hereby releases and
forever discharges Xxxxxxxxx, his employees, agents and representatives, and
their respective heirs, executors, administrators, successors and assigns, past,
present and future (the "Company Released Parties"), from any and all Claims (i)
against the Company Released Parties which the Company Releasing Parties have
ever had, now have, or hereafter can, shall or may have for, upon or by reason
of any matter, cause or thing whatsoever based upon, in connection with, or
arising from or related to (a) the parties' respective rights and obligations
pursuant to the Earn-Out Agreement and pursuant to the Purchase Agreement and
(b) the Pre-Transaction Arrangement, and (ii) against the Company Released
Parties in connection with, arising from or related to all other matters and
events that occurred prior to the date hereof.
Section 4. Further Assurances. Each of the parties hereto agree to
execute such additional documents and agreements as are necessary to effectuate
the intents and purposes of this Agreement.
Section 5. Miscellaneous.
(a) Amendments and Waivers. Neither this Agreement nor any term
or provision hereof may be amended or terminated in any manner other than by an
instrument in writing signed by each party hereto. Any rights under this
Agreement may be waived only by a writing signed by the party entitled to the
benefit thereof.
(b) Integration. This Agreement, together with the Purchase
Agreement, the Earn-Out Agreement and that certain Employment Agreement, dated
as of May 16, 2007, between Xxxxxxxxx and the Company, represent a complete and
fully integrated agreement among the parties hereto and supersede any prior
proposals, letters or other discussions between or among the parties concerning
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the subject matter hereof or thereof, and all such proposals, letters or other
discussions are likewise of no binding effect. The parties acknowledge that they
entered into this Agreement voluntarily, that they fully understand all of its
provisions, and that no representations were made to induce execution of this
Agreement that are not expressly contained herein. The Purchase Agreement
remains in full force and effect except as expressly modified pursuant to this
Agreement.
(c) Governing Law; Disputes. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York,
without regard to its conflict of laws principles. The parties hereto shall seek
to settle amicably all disputes arising in connection with this Agreement. If
such disputes cannot be so settled, the parties agree that these disputes shall
be resolved by use of the federal or state courts in New York City, New York.
(d) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
(e) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile or electronic
mail shall be as effective as delivery of a manually executed counterpart of a
signature page to this Agreement.
(f) Interpretation. Each party has been (or has had the
opportunity to be) represented by its own counsel in connection with this
Agreement and the transactions contemplated hereby. Accordingly, no provision of
this Agreement will be interpreted in favor of, or against, either of the
parties hereto by reason of the extent to which any such party or its counsel
participated in the drafting thereof or by reason of the extent to which any
such provision is inconsistent with any prior draft hereof and no rule of strict
construction will be applied against any party hereto.
(g) Certain Matters. Certain Matters. The Company reaffirms
that: (i) Xxxxxxx Xxxx LLC (d/b/a Preschoolians) was using the same .net 2.0
code to run its ecommerce business as xxxxxxxxxxx.xxx, including but not limited
to, code for order fulfillment, related items, design your own and made to order
fulfillment of orders in China, (ii) Preschoolians LLC (d/b/a Preschoolians)
continued to use this code after Compo was purchased by the Company and (iii)
Xxxxxxx Xxxx LLC has and will continue to have a royalty-free, assignable,
worldwide, irrevocable and perpetual right and license to use this code in any
manner it chooses. Each of Xxxxxxx Xxxx LLC and the Company may freely update
and upgrade such code and make derivative works from such code, and each of
Xxxxxxx Xxxx LLC and the Company respectively shall own the exclusive rights to
such updates, upgrades and derivative works as it may make.
(h) Construction. The headings in this Agreement are provided
for convenience only and will not affect its construction or interpretation.
Unless the context otherwise requires, (i) "or" is disjunctive but not
necessarily exclusive, (ii) the word "including" shall mean "including without
limitation," (iii) words in the singular include the plural and vice versa, (iv)
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the use in this Agreement of a pronoun in reference to a party hereto includes
the masculine, feminine or neuter, as the context may require, and (v) any
reference to a Section refers to a Section of this Agreement, unless otherwise
stated.
(i) No Right of Offset. The payments due to Xxxxxxxxx under this
Agreement shall not be subject to any right of offset or reduction for amounts
due to the Company by Xxxxxxxxx under any other agreement between Xxxxxxxxx and
the Company.
(j) Litigation Expenses. The Company shall reimburse Xxxxxxxxx
for the costs of collection, including reasonable attorneys' fees, should
Xxxxxxxxx be required to bring suit to collect the amounts set forth in Section
1 of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
XXXXXX XXXXXX, LTD
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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