SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT, effective May 24, 1999
(the "Agreement"), is entered into by and among DIMON
Incorporated, a Virginia corporation ("DIMON"), Tabex
(Private) Limited, formerly known as Dibrell Brothers
Zimbabwe (Private) Limited, organized under the laws of
Zimbabwe ("Tabex") and each of their respective
predecessors, successors and assigns, and Folium Inc.,
organized under the laws of the British Virgin Islands
("Folium"), Tabacalera, S.A., organized under the laws
of the Kingdom of Spain ("Tabacalera"), Xxxxx
Investments (Private) Limited (formerly known as Tabex
(Private) Limited), organized under the laws of
Zimbabwe ("Xxxxx"), and Messrs. Xxxxxxx X.X. Xxxxxxx,
Xxxx X.X. Xxxxxxx and Xxxxxxx M.B. Taberer, each an
individual, and each of their respective predecessors,
successors and assigns (collectively referred to as the
"Defendants").
WHEREAS, DIMON entered into a Stock Purchase
Agreement, dated as of February 14, 1997 (as amended,
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the "Stock Purchase Agreement"), with Intabex Holdings
Worldwide, S.A., a Luxembourg corporation ("Intabex"),
Folium, Leaf Management Investments Limited ("LMI") and
Tabacalera (the "Shareholders"), pursuant to which
DIMON purchased all of the outstanding capital stock of
Intabex on April 1, 1997. The Stock Purchase Agreement
was amended, and the parties entered into agreements
regarding, among other things, certain "Specified
Stocks" of tobacco, pursuant to an Agreement and
Amendment No. 1 to Stock Purchase Agreement, dated as
of August 14, 1997, between DIMON and the Shareholders.
WHEREAS, Tabex (formerly known as Dibrell Brothers
Zimbabwe (Private) Limited), organized under the laws
of Zimbabwe, and Xxxxx (each under their former names
referred to above) are parties to an Asset Purchase
Agreement, dated as of February 14, 1997 (the "Asset
Purchase Agreement"), pursuant to which Tabex purchased
certain assets of Xxxxx on April 1, 1997.
WHEREAS, DIMON, Intabex, the Shareholders, Tabex
(by its predecessor) and Xxxxx (by its predecessor) are
parties to a Coordinating Agreement, dated as of
February 14, 1997, pursuant to which the parties agreed
upon certain matters (the "Coordinating Agreement").
WHEREAS, DIMON International Xxxxx X.X. (formerly
known as Intabex S.A. (Zug)) ("DIMON International"), a
wholly-owned subsidiary of DIMON, and Xx. Xxxxxxx X.X.
Xxxxxxx are parties to a Consulting Agreement, dated as
of April 1, 1997 (the "Consulting Agreement").
WHEREAS, DIMON International and Xx. Xxxx X.X.
Xxxxxxx are parties to an Employment Agreement, dated
as of April 1, 1994 (the "Employment Agreement").
WHEREAS, DIMON International and Folium are
parties to two Non-Competition Agreements, dated as of
April 1, 1997, providing for certain limits, as
described in those Agreements, on the ability of Folium
and certain other parties to compete with Intabex in
the leaf tobacco business.
WHEREAS, in a series of letters described in the
list annexed hereto as Exhibit A, DIMON asserted
numerous claims against the Shareholders under the
Stock Purchase Agreement and Asset Purchase Agreement
(the "Claim Letters").
WHEREAS, on September 22, 1998, DIMON and Tabex
(by its predecessor Dibrell) filed an action in the
United States District Court for the Southern District
of New York (the "Court") captioned DIMON Inc. v.
Folium Inc. et al., 98 Civ. 6732 (LAK) (the "Action")
seeking recovery against the Defendants and LMI. DIMON
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subsequently filed an Amended Complaint, dated October
20, 1998, and a Second Amended Complaint, dated
December 28, 1998 in the Action. Although the
Defendants have not yet been required to file an Answer
in the Action, they deny DIMON's allegations and deny
that they are liable to DIMON.
WHEREAS, Xxxxx subsequently commenced an action
against Tabex in the High Court of Zimbabwe captioned
Xxxxx Investments (Private) Limited (formerly Tabex
(Private) Limited) and Tabex (Private) Limited
(formerly Dibrell Brothers (Zimbabwe) (Private)
Limited) (the "Zimbabwe Action"). Although Tabex has
not been required to answer Xxxxx'x action, Tabex
denies Xxxxx'x allegations and denies that Xxxxx is
entitled to any relief requested in that action.
WHEREAS, LMI was liquidated and dissolved pursuant
to British Virgin Islands law in June 1998.
WHEREAS, DIMON and the Defendants now desire to
settle their disputes relating to DIMON's claims
amicably on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the
parties to this Agreement agree as follows:
1. Definitions. Capitalized terms used in
this Agreement but not otherwise defined shall have
the meanings set forth in the Stock Purchase Agreement
or the Asset Purchase Agreement, as the context
requires.
2. Releases and Indemnities. The
following releases and indemnities shall be effective
immediately and irrevocably upon the receipt by the
parties of the settlement consideration as provided in
paragraph 3 hereof.
a. Release by DIMON and Tabex. Except as
set forth in subparagraphs 2(a)(i)
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through (iii), below, and as necessary
to enforce the terms and provisions of
this Agreement, DIMON and Tabex, for
themselves and their subsidiaries,
successors, and assigns, completely
release, acquit and forever discharge
each of the Defendants, LMI, the
liquidator of LMI and their respective
present and former officers, directors,
employees, agents, professional advisors
and Affiliates, from any and all claims,
suits, demands, debts, causes of action
and damages whatsoever, whether at
common law, in equity, (including, but
not limited to, all claims arising under
the Stock Purchase Agreement, the Asset
Purchase Agreement, the Coordinating
Agreement, the Employment Agreement, the
Consulting Agreement or any related
document or agreement), or pursuant to
any statutory or regulatory right of
action (including, without limitation,
claims or rights of action under the
securities laws of the United States,
any State or territory of the United
States or any foreign country), which
DIMON ever had, now has, or may in the
future have for, upon, or by reason of
any matter, cause or thing whatsoever
whether for known or unknown, disclosed
or undisclosed, accrued or unaccrued,
pled or unpled, foreseen or unforeseen,
past, present or future harm, damages,
losses, debts, pecuniary or nonpecuniary
damages, or injury from the beginning of
time to the effective date of this
Agreement, including but not limited to
any and all claims arising directly or
indirectly from or in any way related to
(i) DIMON's acquisition of Intabex's
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capital stock or Tabex's acquisition of
certain Xxxxx assets, (ii) any of the
claims or factual circumstances alleged
in the Action or (iii) the matters
encompassed by the Claim Letters.
This release shall not, however, in any
way affect, restrict or abridge:
(i) (A) the rights of DIMON and its
officers, directors, employees,
agents and Affiliates to obtain
from Folium indemnity on the terms
and conditions of Article XII of
the Stock Purchase Agreement with
respect to any and all Losses
suffered, incurred or sustained by
any of them or to which any of them
becomes subject, resulting from,
arising out of or relating to any
of the matters referred to in
Section 12.01(a)(ii) of the Stock
Purchase Agreement or any
misrepresentation or breach of
warranty contained in Sections
2.01(b), (c), (d) (but only insofar
as such Section 2.01(d) relates to
the capital stock or other equity
interests of the Subsidiaries),
(i), (l) or (n) of the Stock
Purchase Agreement, which
representations and warranties
shall survive for the periods set
forth in Section 11.01 of the Stock
Purchase Agreement and with respect
to which Folium shall be fully
liable notwithstanding the
provisions of Section 12.01(a) of
the Stock Purchase Agreement with
regard to the several liability of
Folium, (B) the rights of Tabex and
its officers, directors, employees,
agents and Affiliates to obtain
indemnity from Xxxxx pursuant to
Article X of the Asset Purchase
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Agreement with respect to any and
all Losses suffered, incurred or
sustained by any of them or to
which any of them becomes subject,
resulting from, arising out of or
relating to any of the matters set
forth in Section 10.1(a)(i) of the
Asset Purchase Agreement or any
misrepresentation or breach of
warranty contained in Sections 2.2,
2.5, 2.8 and 2.16 of the Asset
Purchase Agreement, which
representations and warranties
shall survive for the periods set
forth in Section 9.15 of the Asset
Purchase Agreement, and (C) any
rights of DIMON with respect to the
representations and warranties of
Folium contained in the fourth or
fifth sentences of Section 2.02(a),
and Sections 2.02(b) and (i) of the
Stock Purchase Agreement, provided
that the foregoing provisions of
this paragraph 2(a)(i) are subject
to the following limitations: (V)
if the factual circumstances
relating to any alleged claim for
indemnity with respect to any
matter, representation or warranty
identified in paragraph 2(a) were
the subject of any specific claims
or allegations made by DIMON in any
of the Claim Letters or in the
Action, then such matters are
barred by the foregoing Release and
may not be the subject of claims;
(W) DIMON's right of set-off
against the remaining Set-Off
Debentures (or any cash, Specified
Investments and Purchaser Common
Stock held in escrow pursuant to
Section 12.05(d) of the Stock
Purchase Agreement), shall be
limited in accordance with
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paragraph 3(a)(ii) hereof,
otherwise shall be governed by
Article XII of the Stock Purchase
Agreement; (X) with respect to any
claim for indemnity under the Stock
Purchase Agreement, but not the
Asset Purchase Agreement, the Loss
Threshold described in Section
12.01(c)(i) of the Stock Purchase
Agreement shall be deemed to have
been met; (Y) any liability
whatsoever of Folium and Xxxxx to
indemnify DIMON and Tabex, whether
under this paragraph 2(c),
paragraph 2(d) or otherwise, shall
be limited as follows: with
respect to claims made during the
period from the effective date of
this Agreement until April 1, 2001
any such liability shall be no
greater than a total amount of $10
million and with respect to claims
made thereafter any such liability
shall be no greater than a total
amount of $5 million plus amounts
then claimed or demanded but, in
any event, no greater than $10
million; and (Z) DIMON shall have
no continuing rights against
Tabacalera in any event;
(ii) the rights of DIMON International
to enforce its rights against
Folium and Folium Group (as defined
in the Non-Competition Agreements)
under the Non-Competition
Agreements with respect to any
claim discovered or arising after
the date of this Agreement; or
(iii) the rights of DIMON
International to enforce its rights
against Xxxxxxx X. X. Xxxxxxx with
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respect to Section 11 of the
Consulting Agreement with respect
to any claim discovered or arising
after the date of this Agreement.
b. Release by Defendants. Except as set
forth in subparagraphs 2(b)(i) through
(iii) below, and as necessary to enforce
the terms of this Agreement, each of the
Defendants, for itself and its
successors and assigns, completely
releases, acquits and forever discharges
DIMON and Tabex and their respective
present and former officers, directors,
agents, professional advisors, employees
and Affiliates from any and all claims,
suits, demands, debts, causes of action
and damages whatsoever, whether at
common law, in equity (including, but
not limited to, all claims arising under
the Stock Purchase Agreement, the Asset
Purchase Agreement, the Coordinating
Agreement, the Employment Agreement, the
Consulting Agreement and any related
document or agreement) or pursuant to
any statutory or regulatory right of
action (including, without limitation,
claims or rights of action under the
securities laws of the United States,
any State or territory of the United
States or of any foreign country) which
any of the Defendants ever had, now has,
or may in the future have for, upon, or
by reason of any matter, cause or thing
whatsoever whether for known or unknown,
accrued or unaccrued, pled or unpled,
foreseen or unforeseen, past, present or
future harm, damages, losses, debts,
pecuniary or nonpecuniary damages or
injury from the beginning of time to the
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effective date of this Agreement,
including, but not limited to, any and
all claims arising directly or
indirectly from or in any way related to
(i) DIMON's acquisition of Intabex's
capital stock or Tabex's acquisition of
certain Xxxxx (formerly Tabex) assets;
(ii) DIMON's performance with respect to
the Specified Stocks; (iii) any of the
claims or factual circumstances alleged
in the Action; (iv) the matters
encompassed by the Claim Letters; or (v)
the Zimbabwe Action.
This release shall not in any way
affect, restrict or abridge:
(i) the rights of Folium and Tabacalera with respect
to the proceeds of the COISA litigation as set forth
in 5.5(b) of the Stock Purchase Agreement;
(ii) the rights of Folium, Tabacalera and their
officers, directors, employees, agents and Affiliates
to obtain indemnity from DIMON on the terms and
conditions of Article XII of the Stock Purchase
Agreement with respect to any and all Losses suffered,
incurred or sustained by any of them or to which any of
them becomes subject, resulting from, arising out of or
relating to any misrepresentations or breach of
warranty contained in Section 3.02 or 3.10 of the Stock
Purchase Agreement, which representations and
warranties shall survive for the periods set forth in
Section 11.01 of the Stock Purchase Agreement; and
(iii) the rights of Xxxxx and its officers,
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directors, employees, agents and Affiliates to obtain
indemnity from Tabex on the terms and conditions of
Article X of the Asset Purchase Agreement with respect
to any and all Losses suffered, incurred or sustained
by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to any
misrepresentations or breach of warranty contained in
Section 3.2 or 3.7 of the Asset Purchase Agreement,
which representations and warranties shall survive for
the periods set forth in Section 9.15 of the Asset
Purchase Agreement.
d. Representations.
(i) DIMON and Tabex represent that as of the date of
this Agreement none of the individuals listed on
Exhibit B hereto has actual knowledge of any Loss by
DIMON or Tabex arising under any of the provisions of
the Stock Purchase Agreement, the Asset Purchase
Agreement or the other Agreements referred to in
paragraph 2(a)(i) through (iii) hereof, and has no
actual knowledge of the assertion of a claim by a third
party that could give rise to a Loss under those same
referenced provisions, other than those claims
previously made by DIMON in the Claim Letters or the
Action.
(ii) The Defendants represent that as of the date
of the date of this Agreement none of the individuals
listed on Exhibit B hereto has any actual knowledge of
any Loss by Defendants arising under any of the
provisions of the Stock Purchase Agreement or the Asset
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Purchase Agreement referred to in paragraphs 2(b)(ii)
through (iii) hereof, and has no actual knowledge of
the assertion of a claim by a third party that could
give rise to a Loss under the same referenced
provisions.
d. Indemnities. Folium shall
indemnify and hold DIMON harmless
against: (i) any and all losses
incurred by DIMON as a result of the
assertion of any claims by LMI, the
liquidator of LMI, or any assignee of
LMI against DIMON that are within the
scope of the subject matter of the
release provided by the Defendants
herein; and (ii) any commissions paid by
DIMON to Kortem, Ozegener or Tezol with
respect to the Turkish Tobaccos (as
defined in Section 3(b)(iii)
("Contingent Commissions")), provided
that DIMON shall not be entitled to
indemnification for any Contingent
Commission unless, prior to paying such
commission, DIMON notifies Folium and
Xxxx X. X. Xxxxxxx of the receipt of a
demand for such payment and provides
Xxxx A. B. Taberer with a period of
ninety days thereafter to dispute that
any such payment is owing and to resolve
such dispute with the party demanding
the Contingent Commission. With respect
to the indemnity provided pursuant to
paragraph 2(d)(ii) hereof, if after such
nine-day period any dispute remains
unresolved, DIMON shall be entitled,
upon Notice to Folium and Xxxx X. X.
Xxxxxxx, to pay any such Contingent
Commission and se-off the full amount of
such payment against the Set-Off
Debentures. The existence of this
indemnity, however, shall not in any way
affect the timing of the release of the
Set-Off Debentures. With respect to the
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payment of any Contingent Commission by
DIMON under the circumstances set forth
above, DIMON shall assign to Folium any
and all of its rights against the party
claiming such Contingent Commission.
3. Settlement Consideration and Conditions
to Releases. In consideration of the foregoing
releases and the settlements provided for in this
Agreement, the parties agree as follows:
a. Obligations of Defendants. The
Defendants shall:
(i)Deliver to DIMON for immediate
cancellation Set-Off Debentures
having an aggregate principal amount
of US$50 million. The certificates
representing such Set-Off Debentures
shall be endorsed in blank and shall
be transferred to DIMON free and
clear of any mortgage, pledge, lien,
charge or encumbrance. On or after
the date of this Agreement, the
Defendants shall not be entitled to
any further interest payments with
respect to the Set-Off Debentures
cancelled pursuant to this paragraph
3(a)(i).
(ii) Deliver to DIMON for exchange
Set-Off Debentures having an
aggregate principal amount of US$30
million. DIMON shall immediately
issue new certificates representing
such Debentures free of any legend
referring to any right of set-off,
and DIMON shall have no further
right of set-off with respect to
such debentures. The remaining Set-
Off Debentures issued to Folium with
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an aggregate principal amount of
US$10 million shall continue to be
subject to DIMON's right of set-off
pursuant to Section 12.05 of the
Stock Purchase Agreement on the
terms and conditions of Article 12
of the Stock Purchase Agreement and
paragraph 2 of this Agreement,
except that Section 12.05(e) shall
be amended to provide that on the
fourth anniversary of the Closing
Date, any Set-Off Debentures, cash,
Specified Investments and Purchaser
Common Stock held in escrow in
excess of $35 million plus amounts
then claimed or demanded by
Purchaser pursuant to Section 12.01
shall be released from the
restrictions of Section 12.05 and
any escrow, and that on the fifth
anniversary of the Closing Date any
Set-Off Debentures, cash, Specified
Investments and Purchaser Common
Stock held in escrow in excess of
amounts then claimed or demanded by
Purchaser pursuant to Section 12.01
shall be released from the
restrictions of Section 12.05 and
any escrow.
(iii) Within two business days after
the effective date of this
Agreement, Xxxxx shall file a Notice
of Withdrawal with the High Court of
Zimbabwe withdrawing the Zimbabwe
Action.
(iv) Folium shall obtain and provide
to DIMON an undertaking from the
liquidator of LMI stating that LMI
has been dissolved and that the
liquidator will not seek to revive
or consent to the revival of LMI for
any purpose, including for the
purpose of bringing or assigning any
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claim against DIMON.
b. Obligations of DIMON. DIMON shall:
(i) Pay to Xxxxxxx X.X. Xxxxxxx by
wire transfer of immediately
available funds an amount equal to
US$967,000. Upon receipt by Xxxxxxx
X.X. Xxxxxxx of such payment, the
Consulting Agreement shall terminate
without further liability of either
party thereunder, provided, that the
provisions of Section 11,
"Confidential Information," of the
Consulting Agreement shall survive
such termination.
(ii) Reinstate Xxxx A.B. Taberer to
active employment effective
simultaneously with the
effectiveness of the Releases in a
position and upon terms and
conditions to be mutually agreed
upon by Xxxx X.X. Xxxxxxx and XXXXX.
Such employment shall be in
accordance with the terms and
conditions of the Employment
Agreement or with any written
amendment to the Employment
Agreement.
(iii) Purchase from Folium 1,475,634
kilos of Turkish 93AG tobacco at
US$2.80 per kilo representing the
remaining unsold Specified Stocks
(the "Turkish Tobacco"). In
consideration for the Turkish
Tobacco and in full settlement of
all of the obligations of the
parties to one another with respect
to the Specified Stocks (except as
provided in the remainder of this
subsection (iii)), DIMON shall pay
to Folium US$5,014,734.00 by wire
transfer of immediately available
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funds. Folium shall deliver to
DIMON a duly executed xxxx of sale
and all other documents or
instruments necessary to convey
title to the Turkish Tobacco to
DIMON free and clear of any
mortgage, pledge, lien, charge,
encumbrance or commission. DIMON
shall retain an additional $5,466.51
that would be payable to Folium
under this subparagraph as a reserve
against potential commissions
payable on demand by Kortem on pre-
closing sales of certain Specified
Stocks. If Kortem has not demanded
payment of this amount by January 1,
2000, however, DIMON shall remit the
$5,466.51 to Folium. Unless
otherwise agreed to the contrary in
this Agreement, DIMON shall be
responsible for any and all costs,
including but not limited to
commissions, warehousing and freight
charges with respect to the Turkish
Tobacco after the Closing. In
addition, DIMON has sold on Folium's
behalf 47,796 kilos of Turkish 93AG
tobacco to CNTIEC at a total price
of US$191,184.00, for which payment
has not yet been received. DIMON
shall use its commercially
reasonable best efforts to collect
the full amount of such purchase
price on Folium's behalf and shall
promptly remit to Folium all sale
proceeds actually received by it,
net of freight and direct selling
costs (presently estimated to result
in net sale proceeds of
US$172,916.37) within three business
days of receipt thereof by DIMON.
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c. Obligations of Defendants and DIMON.
Within two business days after the
effective date of this Agreement, DIMON
and the Defendants shall cause to be
filed with the Court a Stipulation in the
form annexed hereto as Exhibit C to be
entered as an Order by the Court: (1)
dismissing all claims in the action with
prejudice and (2) releasing to Folium all
payments of interest on the Convertible
Debentures that previously were deposited
into the Court during the pendency of the
Action.
d. Closing. Within two business days after
the date that the Court enters the
Stipulation referred to in paragraph (c)
as an Order and the Zimbabwe Action has
been fully and finally withdrawn, the
parties shall exchange the remaining
consideration (except for CNTIEC sale
proceeds and the $5,466.51 commission
reserve) provided for in paragraphs 3(a)
and (b) hereof. Immediately upon
exchange of such consideration, the
Releases, undertakings and indemnities,
undertakings and covenants herein shall
become effective. If any party fails to
transfer the consideration provided for
in paragraph 3(a) and (b) in a timely
fashion in accordance with this
paragraph, that party shall pay interest
at the United States prime rate on any
unpaid balance from the date such
consideration was required to be
delivered through the date such
consideration is actually received by the
party entitled to it.
4. Covenants.
a. Third Party Claims. Except with respect
to the actions set forth on Exhibit D
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hereto, DIMON and Tabex for themselves
and their respective subsidiaries,
successors and assigns hereby covenant
that each of them will commence no action
or proceeding nor bring any claim in any
action or proceeding against any former
professional advisor of Intabex or Xxxxx,
including but not limited to any of the
member firms of the Ernst & Young
international organization, CS First
Boston, or any other accountant,
investment banker or professional service
provider to Intabex or the Defendants
(hereinafter the "Professional Advisors")
relating to (i) DIMON's acquisition of
Intabex's capital stock or Tabex's
acquisition of certain Xxxxx assets, (ii)
any of the claims or factual
circumstances alleged in the Action; or
(iii) the matters encompassed by the
Claim Letters. In the event a
Professional Advisor commences an action
or proceeding or brings any claim in any
action or proceeding against DIMON or
Tabex or their respective subsidiaries,
successors and assigns relating to the
matters identified in the immediately
preceding sentence, then this covenant
shall terminate as to that Professional
Advisor.
b. Res Judicata. The Defendants for
themselves and their respective
successors and assigns hereby covenant
that in any action or proceeding brought
by DIMON with respect to any claim
preserved by paragraphs 2(a)(i) through
(iii) of this Agreement, they shall not
assert that any such claim is barred by
the principles of res judicata or
otherwise is barred as a result of the
dismissal of the Action. In the event
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that any court nevertheless dismisses any
action or claim brought by DIMON with
respect to any claim preserved by
paragraphs 2(a)(i) through (iii) of this
Agreement on the ground of res judicata,
the Defendants hereby consent to the
arbitration of any such claim before a
single arbitrator to be conducted in New
York, New York under the Commercial Rules
of the American Arbitration Association,
consistent with paragraph 10(a) of this
Agreement.
c. Further Assurances. Each of the
parties to this Agreement shall take any
and all actions reasonably necessary to
ensure compliance with and effectuation
of the terms and conditions of this
Settlement.
b. Return of Documents. Within 60 days
after the Effective Date, or at such
further time as may be agreed upon by
counsel for the parties, each party and
its counsel and experts shall return to
the producing party or destroy (at the
non-producing party's option) all
documents produced by the producing party
during discovery and all copies thereof.
Each non-producing party, or its counsel,
shall provide written notice to the
producing party certifying that those
documents have been returned or
destroyed. The two immediately foregoing
sentences shall not apply to:
(i) copies of documents produced
that either were annexed as exhibits
to papers filed in Court in the
Action or marked as deposition
exhibits to be bound with the
transcripts of such depositions,
which may be maintained by the
parties, but which shall be subject
to the terms of that Stipulation and
Protective Order between DIMON,
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Defendants and LMI dated March 15,
1999, as amended April 15, 1999 (the
"Protective Order"), except
paragraph 14 thereof;
(ii) documents and all copies thereof
obtained from non-parties pursuant
to subpoenas which may be maintained
by the parties, but which shall be
subject to the terms of the
Protective Order, except paragraph
14 thereof;
(iii) transcripts and videotapes of
any non-party depositions which may
be maintained by the parties but
which shall be subject to the terms
of the Protective Order except
paragraph 14 thereof; and
(iv) Originals and/or copies of the
materials produced by Xxxxx to XXXXX
relating to the tobacco business of
Xxxxx'x predecessor, Tabex. To the
extent that any such materials
contain information pertaining to
any non-tobacco business of Xxxxx'x
predecessors or Affiliates, however,
the use of such information shall be
subject to the provisions of the
Protective Order, except paragraph
14 thereof.
c. Confidential Discovery Material; Press
Release. Except as set forth in
paragraph 4(c) hereof, the parties shall
comply with the terms of the Protective
Order with respect to Confidential
Discovery Material, as defined therein.
DIMON and the Defendants shall provide
each other with copies of any press
releases to be issued by any of them in
connection with this Agreement not later
than one business day before release.
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5. No Admission of Liability. Entering into
and carrying out this Agreement is not, and shall not
be construed as, or deemed to be evidence of, an
admission by or against any party of any fault,
wrongdoing or liability or an admission or concession
by the parties that their claims or defenses were
advanced in bad faith or otherwise lacked merit.
Subject to the foregoing and in the interest of
reaching an amicable settlement, effective upon the
closing, DIMON withdraws any allegations of fraud
against the Defendants in the Action.
6. Fees and Expenses. All parties shall pay
their own attorneys' fees, costs, expert fees or any
other expenses incurred during, or in preparing for,
the Action and in negotiating and preparing this
Agreement.
7. Notices. Any and all notices, requests,
consents, directives or communications by any party
relating to this Agreement intended for any other
party shall be in writing, shall be given personally,
telecopied, sent by postage prepaid certified or
registered mail, return receipt requested, or
guaranteed overnight delivery carrier, and shall be
deemed delivered on the earlier of (a) the date
received or (b) the date two business days after
deposit with a guaranteed overnight delivery carrier,
and shall be addressed as follows:
If to DIMON or Tabex:
DIMON Incorporated
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxxx X. Xxxxxx
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with a copy to
Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx, 00000
Attention: Xx. Xxxxxxxx X. Xxxxx
Xx. Xxxxxx X. Xxxxxx
If to Folium:
Maitland & Co.
00 xxx xx Xxxxxx
Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, III
If to Tabacalera:
Tabacalera X.X.
Xxxxxx 00
00000 Xxxxxx, Xxxxx
Attention: Xx. Xxxxxxx Xxxx
with a copy to:
Xxxxxxx, Breed, Abbot & Xxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
If to Xxxxx:
Winterton, Xxxxxx & Xxxx
7 Xxxxxxx Place
Selous Avenue
Harare, Zimbabwe
Attention: Xx. Xxxxx Xxxxxxxxx
Xx. Xxx Passaportis
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with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, III
If to Xxxxxxx X.X. Xxxxxxx:
Xxxxxxx X. X. Xxxxxxx
Avontuur Estate
Old Stellenbosch Road
Cape Province, South Africa
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, III
If to Xxxx X.X. Xxxxxxx:
Xxxx A.B. Taberer
Xxx Xxxxx
Xxx Xxxxxx
Xxxxxxxxxxxxx
Xxxxxxxxx XX000XX
XX
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, III
If to Xxxxxxx M.B. Taberer:
Xxxxxxx M.B. Taberer
00X Xxxxxxxx Xxxx
Xxx Xxxxxxxxx
Harare, Zimbabwe
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with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, III
Any party may, from time to time, change the
address to which such written notice, request, consent,
directive or communications are to be mailed, by giving
the other parties ten days' prior written notice of the
changed address in the manner hereinabove provided.
8. Entire Agreement; Captions. This Agreement
constitutes the entire agreement between the parties
and may not be amended except by a writing signed by
the parties to be bound thereby. The recitals and
section and subsection captions used in this Agreement
have been inserted for convenience of reference only
and to not define or limit the provisions hereof.
9. Counterparts. This Agreement may be
executed in one or more counterparts, each of which
will be deemed an original and all of which together
shall constitute one and the same instrument.
10. Governing Law and Submission to Jurisdiction.
a. Governing Law. This Agreement shall be
governed by, and construed and enforced
in accordance with, the laws of the State
of New York applicable to a contract
executed and performed in such state.
b. Consent to Jurisdiction; Venue.
(i) DIMON, Tabex and the Defendants (the
"Consenting Parties") consent to submit
to the exclusive jurisdiction of the
United States District Court for the
Southern District of New York or, in the
event (but only in the event) such court
does not have subject matter
jurisdiction, of the courts of the State
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of New York sitting in the County of New
York for any actions, suits or
proceedings arising out of this
Agreement. Each of the Consenting
Parties agrees not to commence any
action, suit or proceeding arising out of
this Agreement except in such courts and
further agrees that service of any
process, summons, notice or document by
U.S. registered mail to the address of
the party set forth above shall be
effective service of process for any
action, suit or proceeding brought
against them in any such court. Each of
the Consenting Parties unconditionally
waives any objection to the laying of
venue of any action, suit or proceeding
arising out of this Agreement in such
courts, and waives and agrees not to
plead or claim in any such court that any
such action, suit or proceeding brought
in any such court has been brought in an
inconvenient forum.
b. Service of Process. DIMON, Tabex,
Xxxxx, Folium and Tabacalera each hereby
irrevocably designates, appoints and
empowers CT Corporation System, at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
such other address where such
representative office may be located in
New York City, and its successors and
assigns, as its true and lawful agent for
service of process to receive and accept
on its behalf service of process in any
actions, suits or proceedings arising out
of this Agreement. Each of Xxxxxxx X. X.
Xxxxxxx, Xxxx X. X. Xxxxxxx and Xxxxxxx
M. B. Taberer hereby irrevocably
designates, appoints and empowers
Maitland & Co., 5th Floor, 00-00 Xxxxx
Xxxxxx, Xxxxxx X0X 0XX, as his true and
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lawful agent for service of process to
receive and accept service of process on
his behalf in any actions, suits or
proceedings to enforce this Agreement.
DIMON, Tabex and each of the Defendants
agrees that the failure of such process
agent to give notice of any service of
process to it or him shall not impair or
affect the validity of service upon such
agent or any judgment based thereron.
DIMON, Tabex and the Defendants each
shall be responsible for all fees and
expenses of such agent for its own
account.
c. Waiver of Jury Trial. EACH PARTY
HERETO IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF THIS AGREEMENT OR THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT OF THIS AGREEMENT.
d. Fees and Expenses. In any action,
suit or proceeding brought to enforce
this Agreement, the prevailing party or
parties shall be entitled to receive from
the non-prevailing party or parties its
or their fees and expenses, including the
reasonable fees and expenses of counsel,
incurred in prosecuting such action, suit
or proceeding. The parties expressly
agree that any action brought by any
party relating to any claims not released
by this Agreement shall not be considered
an action brought to enforce this
Agreement or otherwise be subject to this
paragraph 10.
11. Successors and Assigns. This Agreement
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shall be binding on, and inure to the benefit of, the
parties hereto and their respective successors and
assigns.
12. Co-Drafters Stipulation. DIMON and the
Defendants agree that they shall be deemed co-drafters
in the event of any judicial interpretation or
construction of the terms of this Agreement. As a
result, no contra proferentum presumption shall apply
to this Agreement. To the contrary, the release and
discharge language shall be given the broadest
possible interpretation favorable to DIMON and the
Defendants, as applicable.
IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of May 24, 1999.
Seen & Agreed:
DIMON INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
_____________________
Name: Xxxxx X. Xxxxxx
Title: President & CEO
Seen & Agreed:
TABEX (PRIVATE) LIMITED
formerly known as DIBRELL BROTHERS
ZIMBABWE (PRIVATE) LIMITED
By: /s/ Xxxx X. Xxxx
_____________________
Name: Xxxx X. Xxxx
Title: Finance and Administrative Director
Seen & Agreed:
FOLIUM INC.
By: /s/ X. Xxxxxxxx
_____________________
Name: X. Xxxxxxxx
Title: Attorney to Folium
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Seen & Agreed:
TABACALERA S.A.
By: /s/ Xxxxxxx X. Xxxxxxx
_____________________
Name: Xxxxxxx X. Xxxxxxx
Title: With authority from Tabacalera S.A.
Seen & Agreed:
XXXXX INVESTMENTS (PRIVATE) LIMITED
By: /s/ Xxxxxxx Xxxxxxx
_____________________
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Seen & Agreed:
/s/ Xxxxxxx X. X. Xxxxxxx
_____________________
Xxxxxxx X.X. Xxxxxxx
Seen & Agreed:
/s/ Xxxx A. B. Taberer
______________________
Xxxx X.X. Xxxxxxx
Seen & Agreed:
/s/ Xxxxxxx M.B. Taberer
________________________
Xxxxxxx M.B. Taberer
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