EXHIBIT 10.33
TISM, Inc.
00 Xxxxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
March 23, 2000
Xxxxxx X. Xxxxxxxx
30 Xxxxx Xxxxx Xxxxxx Xxxxx
X.X. Xxx 000
Xxx Xxxxx, XX 00000-0000
RE: Proposed X.X. Xxxxx Corporation/Vesture Corporation Settlement
Agreement
Dear Xx. Xxxxxxxx:
Reference is hereby made to the Agreement and Plan of Merger dated as of
September 25, 1998 among TM Transitory Merger Corporation, TISM, Inc. and Xxxxxx
X. Xxxxxxxx, individually and as Trustee of The Xxxxxx X. Xxxxxxxx Living Trust,
as amended by Amendment No.1 thereto dated as of November 24, 1998, Amendment
No. 2 thereto dated as of November 24, 1998, Amendment No. 3 thereto dated as of
December 18, 1998 and Amendment No. 4 thereto dated as of December 10, 1999 (as
amended, the "Merger Agreement") and to the Settlement Agreement (the
"Settlement Agreement") dated the date hereof among X.X. Xxxxx Corporation
("Xxxxx"), Vesture Corporation ("Vesture"), Phase Change Laboratories, Inc.
("PCL") and Domino's Pizza, Inc. (as successor by merger to the Buyer, the
"Surviving Corporation") relative to the litigation brought by Xxxxx and Vesture
against PCL and the Surviving Corporation in the United States District Court of
the Middle District of North Carolina, Civil Action No. 1:98-CV00802 (the
"Action"). Capitalized terms defined in the Merger Agreement are used in this
letter as so defined.
This letter (the "Settlement Letter") sets forth our agreement as follows:
(a) contemporaneously with the payment by the Surviving Corporation of an
amount equal to $5,000,000 to Xxxxx and/or Vesture pursuant to Section
3 of the Settlement Agreement, the Principal Stockholder shall pay to
the Surviving Corporation an amount equal to $4,000,000 by wire
transfer in immediately available funds; and
(b) contemporaneously with the payment by the Surviving Corporation of the
amount, if any, due as of March 15, 2002 to Xxxxx and/or Vesture
pursuant to Section 4(b) of the Settlement Agreement (the "Shortfall
Amount"), the Principal Stockholder shall pay to the Surviving
Corporation an amount equal to 80% of the Shortfall Amount by wire
transfer in immediately available funds.
Each of the Surviving Corporation and the Principal Stockholder agrees that
the agreements set forth in this Settlement Letter are in full satisfaction and
extinguishment of the rights and obligations of each of the Surviving
Corporation and the Principal Stockholder under
Xxxxxx X. Xxxxxxxx -2- March 23, 2000
Article XII the Merger Agreement with respect to the Action, any Phase Change
Damages, or any other Damages arising out of or relating to the Action.
Except as specifically amended by this Settlement Letter, the Merger
Agreement shall remain in full force and effect. This Settlement Letter shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflict of law rules of such state. This Settlement
Letter shall become effective when signed and delivered by each party hereto.
Please indicate your agreement with the foregoing by executing the enclosed
copy of this letter and returning it to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: X. Xxxxxxx Xxxxxxxxx
Facsimile: 000-000-0000
Very truly yours,
TISM, Inc.
By: /s/Xxxxx X. Xxxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxxx
Title: CFO-Vice President
The foregoing is hereby
Agreed to and accepted:
By: /s/Xxxxxx X. Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
Cc: Xxxxxx X. Xxxxxx, Esq.
