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Exhibit 10.1
SETTLEMENT AGREEMENT
THIS AGREEMENT is entered this 1st day of November, 1995, by and
between Maxcell Telecom Plus, Inc. ("Maxcell"), XxXxx Cellular
Communications, Inc., and XxXxx Communications of the Mid-South, Inc.
(collectively "XxXxx"); Xxxxxx X. XxXxxxxx, individually and as Co-Trustee of
the Charisma Communications Corp. Liquidating Trust, Charisma Communications
Corp., Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxx, Xx., Xxxx X. Xxxxxxxx, Xx., Xxxxxxx
Xxxxxx, Xxxxxxx X. Xxxxxx, Xx., Xxxxxxx Xxxxx, Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, Xxxxxxx X. Xxx, Xxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx,
Xx., the Charisma Liquidating Trust (collectively the "Charisma Parties"),
Xxxxxxx Xxxxx and Xxxxx Xxxxxxx, as class representatives in the District of
Columbia litigation referred to below, the Plaintiff Class in the District of
Columbia litigation ("the Plaintiff Class") and Xxxxxxx Xxxxx, third-party
defendant in the District of Columbia litigation, TPI Enterprises, Inc., and
Xxxxxxx X. Xxxxx.
W I T N E S S E T H :
WHEREAS, certain of the above-referenced parties are engaged in
litigation in the Circuit Court of the Fifteenth Judicial Circuit in and for
Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxx Xx. XX 00-0000 AJ (hereinafter the "Palm Beach
Litigation"); and
WHEREAS, certain of the above referenced parties are engaged in
litigation in the United States District Court, District of Columbia, Civil
Action No. 90-112 HHG (hereinafter the "District of Columbia Litigation"); and
WHEREAS, the parties in the Palm Beach Litigation and District of
Columbia Litigation desire to settle all claims asserted or which could have
been asserted in said actions pursuant to the terms of this Settlement
Agreement.
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NOW, THEREFORE, in consideration of the terms and conditions set forth
hereafter, the parties agree as follows:
1. XxXxx shall pay (a) $90 million to the Plaintiff Class in the
District of Columbia Litigation and (b) $30 million to Maxcell, in accordance
with the provisions hereof, within five (5) business days after the later of
the dates on which a Final Order approving this Agreement, not subject to
further judicial review, is entered in (i) the District of Columbia Litigation
and (ii) the Palm Beach Litigation, (hereinafter "the Settlement Proceeds").
This Settlement Agreement is subject to the approval of the courts in the
District of Columbia Litigation and the Palm Beach Litigation as provided
herein.
2. The parties agree immediately jointly to seek a stay of the
pending Palm Beach Litigation pending approval of the terms of this Settlement
Agreement by the United States District Court for the District of Columbia.
3. The Plaintiff in the Palm Beach Litigation and the Defendants
in said litigation agree jointly to file a motion in said litigation within ten
(10) days of the date of this Settlement Agreement, to have the terms of this
Settlement Agreement approved by said Court and which requests the Court to
order the parties to comply with the Settlement Agreement.
4. The Plaintiffs in the District of Columbia Litigation and the
Defendants in said litigation agree jointly to file a motion in said litigation
within ten (10) days of the date of this Settlement Agreement to have the terms
of this Settlement Agreement approved by said Court.
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5. No later than five (5) business days after the entry of an
order by the U.S. District Court for the District of Columbia approving this
Agreement, XxXxx shall pay (i) $90 million into one escrow (the "Charisma
Escrow") and (ii) $30 million into a second escrow (the "Maxcell Escrow")
pursuant to escrow agreements, to be agreed among the respective parties and
their counsel, with fees to be paid from interest. The amounts in the two
Escrows, together with interest thereon, shall be held in escrow until the
entry of Final Orders, not subject to further judicial review ("Final Orders"),
approving or disapproving this Agreement in the District of Columbia Litigation
and the Palm Beach Litigation.
(a) If the Final Orders in both Litigations approve this
Agreement,
(i) The entire Charisma Escrow shall be disbursed
to the registry of the United States District
Court for the District of Columbia, and
(ii) The entire Maxcell Escrow shall be disbursed
to Maxcell pursuant to escrow instructions.
(b) If the Final Order in either Litigation disapproves
this Agreement, and the Escrow Funds have not been released pursuant to any
other provision of this Agreement, the entire Charisma and Maxcell Escrows
shall be disbursed to XxXxx, and the parties may proceed in their litigation.
6. If the Maxcell Escrow has not been established pursuant to
paragraph 5 on or before January 2, 1996, XxXxx shall immediately pay $30
million into the Maxcell Escrow. Upon approval by the courts as described in
paragraph 5, or upon other written
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agreement between Maxcell and XxXxx, or as otherwise provided herein, the full
amount in the Maxcell Escrow, including interest, shall be paid to Maxcell.
7. Upon payment and receipt of the Settlement Proceeds, the
parties in the Palm Beach litigation, the parties and class in the District of
Columbia Litigation, Xxxxxxx Xxxxx and TPI Enterprises, Inc. agree that they
release one another and their parents, subsidiaries, affiliates, successors,
assigns, directors, shareholders, officers, employees, attorneys, agents, class
members and representatives, past and present, from any and all claims, present
or future, known or unknown, which were brought or could have been brought in
the District of Columbia Litigation, Palm Beach County Litigation, or which
arise out of or relate to any of the allegations or subject matter of said
actions or which were alleged or could have been alleged in the proposed
counterclaim and third party claims which the Charisma Parties sought leave to
pursue in the Palm Beach Litigation. The Plaintiff Class shall provide XxXxx
with a Satisfaction of Judgment and XxXxx shall provide Xxxxxx XxXxxxxx with a
Satisfaction of Judgment upon payment and receipt of the settlement proceeds.
8. Upon receipt by the parties of payment of the Settlement
Proceeds, the parties shall execute and file with the respective Courts a
Stipulation of Dismissal with Prejudice of all claims asserted in said actions
with the express provision that the courts retain jurisdiction to enforce the
terms of this Settlement Agreement.
9. In the event Maxcell does not receive payment for any reason
within two years of the date of this Agreement, Maxcell shall have the right at
any time thereafter, prior to payment and receipt of the Settlement Proceeds
with interest, to rescind this Agreement and proceed with the Palm Beach
Litigation. Prior to electing its right to rescind, Maxcell must
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give counsel for XxXxx and counsel for the Charisma Parties ten days written
notice of its intent to rescind. If XxXxx tenders full payment of the
Settlement Proceeds plus the accrued interest to Maxcell within the ten day
grace period, by release of the Maxcell Escrow or otherwise, the Parties agree
to jointly dismiss the Palm Beach Litigation with prejudice with the court
retaining jurisdiction solely to enforce the terms of this Settlement
Agreement. If XxXxx does not make payment in full under this Settlement
Agreement within ten (10) days of receipt of notice, then this Settlement
Agreement shall become null and void on the tenth day after notice is received
by XxXxx and Maxcell shall be permitted to proceed with the Palm Beach
Litigation.
10. Maxcell's parent company, TPI Enterprises, Inc., may issue a
press release in the form attached hereto as Exhibit "A". Counsel for the
Plaintiff Class may issue a press release in the form attached hereto as
Exhibit "B". Responses to inquiries about the settlement will be confined to
the information contained in the press releases. Other than disclosures
required by law, discussions between the Plaintiff Class and its counsel,
intracompany and intrafirm communications, and those described above, neither
the parties nor their counsel shall make any public statements regarding the
terms of this Settlement Agreement.
11. XxXxx'x payment of $90,000,000.00 to the Plaintiff Class,
including XxXxxxxx reflects the agreement between and among XxXxx, the
Plaintiff Class, and XxXxxxxx, that: (a) Plaintiff Class agreed to settle
their judgment against XxXxx for $100,000,000.00, and (b) XxXxx agreed to
settle its counterclaim judgment against Xx. XxXxxxxx for $10,000,000.00. Xx.
XxXxxxxx and the Plaintiff Class agree that in no event shall XxXxx be
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required to pay a total amount of more than $90,000,000.00 to the Plaintiff
Class, including XxXxxxxx and nothing herein shall alter in any way XxXxx'x
right to receive full releases from each of them, or any other rights or
obligations of the parties hereunder.
12. Plaintiff Class and Xx. XxXxxxxx separately agreed to an
indemnity agreement which indemnifies Xx. XxXxxxxx for the full amount of the
counterclaim settlement.
13. This Settlement Agreement is being entered following mediation
by the parties of their respective claims. The undersigned representatives of
the parties hereby represent that they have the authority to enter into this
Settlement Agreement.
14. This Agreement shall be binding upon all parties hereto and
their successors and assigns.
15. All parties shall bear their own costs, fees, and expenses
incurred in connection with this Settlement Agreement, Palm Beach Litigation,
and the District of Columbia Litigation, without prejudice plaintiffs' and
class counsels' right to request the payment of attorneys fees and expenses as
appropriate for the Charisma Settlement Proceeds.
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DATED this 1st day of November, 1995.
MAXCELL TELECOM PLUS, INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Chairman
and
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Executive
Vice President
XxXXX CELLULAR COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Senior Vice President
XxXXX COMMUNICATIONS OF THE
MID-SOUTH, INC.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Senior Vice President
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
/s/ Xxxxxxx Xxxxx
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XXXXXXX XXXXX
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/s/ Xxxxxxxx X. Xxxxxxxx
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XXXXXXXX X. XXXXXXXX, Esq.
Xxxx, Scholer, Fierman, Xxxx & Handler
As counsel for the Plaintiff class in
the Washington, D.C. Litigation and
Xxxxxxx Xxxxx, and as attorney for
the Charisma Parties in the
Palm Beach Litigation
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX, Esq.
Xxxxxx & Xxxxxx
Attorney for the Charisma Parties in
the Palm Beach Litigation and
Xxxxxx X. XxXxxxxx
/s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX, Esq.
Greenberg, Traurig, Hoffman, Lipoff,
Xxxxx & Xxxxxxx, P.A.
Attorney for XxXxx Cellular Communications,
Inc. and XxXxx Communications of the
Mid-South, Inc.
/s/ E. Xxxx Xxxxxxx
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E. XXXX XXXXXXX, Esq.
Xxxxx, Xxxx & Xxxxxxx, P.C.
Attorney for Maxcell Telecom Plus, Inc.
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX, ESQ.
Jones, Foster, Xxxxxxxx & Xxxxxx, P.A.
Attorney for Maxcell Telecom Plus, Inc.
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/s/ Xxxx Xxxxx
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XXXX XXXXX, Esq.
Xxxxx & XxXxxxxx
Attorney for Xxxxxx XxXxxxxx
/s/ X.X. Mode
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X.X. MODE, Esq.
Xxxxxx, Xxxxxx & Xxxxxxxxx
Attorney for XxXxx Cellular Communications,
Inc. and XxXxx Communications of the
Mid-South, Inc.
TPI ENTERPRISES, INC.
By: /s/ J. Xxxx Xxxxx
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J. Xxxx Xxxxx, President
and
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Director
This Agreement was entered into pursuant to a mediation held before
Xxxxxxx Xxxxxxxxxx and reflects the terms of the Settlement Agreement.
/s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx, Mediator
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FOR IMMEDIATE RELEASE EXHIBIT A
Date: November __, 1995
Contact: Xxxxxxxxx X. Xxxxxxx
TPI ENTERPRISES ANNOUNCES SETTLEMENT
OF MAXCELL LAWSUIT WITH XxXXX
PALM BEACH GARDENS, FL-TPI Enterprises, Inc., (NASDAQ/NMS-TPIE) announced today
that its subsidiary Maxcell Telecom Plus, Inc. has entered into a settlement
agreement with AT&T Wireless Services, Inc. (formerly XxXxx Cellular
Communications, Inc.) relating to the lawsuit pending the state Circuit Court
in West Palm Beach, Florida. The settlement provides for a total payment to
Maxcell of $30 million. The settlement is subject to payment of contingent
fees and expenses and to approval of the Florida Court, as well as the approval
of the U.S. District Court for the District of Columbia of the simultaneous
settlement entered into between AT&T and a class of former Charisma
shareholders of the pending class action between them in D.C. The proposed
settlement agreement provides for the release of all claims pending among the
parties in the Florida and D.C. courts.
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EXHIBIT B
PRESS RELEASE
AT&T Wireless Services, Inc. (formerly XxXxx Cellular Communications,
Inc.) has agreed to pay the former shareholders of Charisma Communications
Corp. $90 million in settlement of claims arising out of the sale of Charisma
cellular properties to XxXxx Cellular Communications, Inc. in 1986. A trial
was held on these claims in U.S. District Court for the District of Columbia in
early 1995. In addition a settlement was reached between Charisma and Maxcell
Telecom Plus, Inc., a subsidiary of TPI Enterprises providing for the release of
all claims pending among the parties in their litigation in the Circuit Court
in Florida.
