Exhibit 10.37
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
ADDENDUM TO SETTLEMENT AND
RELEASE AGREEMENT
This Addendum (the
“Addendum”) to the Settlement and Release Agreement
entered into the 22 nd day of November, 2004 (the
“Agreement”), is agreed upon by the signatories to the
Agreement with respect to the Derivative Litigation, as defined
therein. All terms used in this Addendum shall have the same
meaning as that attributed to such terms in the
Agreement.
PREAMBLE
1. The Preamble of the Agreement is
hereby modified to include the following:
WHEREAS, on December 13, 2004, representatives of
Microtune, on its own behalf and on behalf of the other Microtune
Parties, and representatives of Sheffield participated in a
mediation (the “Derivative Mediation”) before mediator
Gary McGowan, with respect to the Derivative Litigation;
and
WHEREAS, counsel to the Plaintiffs and Microtune reached
a final agreement on the terms of a proposed settlement, including
the adoption of a corporate governance plan, as set forth more
fully in the Stipulation and Agreement of Settlement
(“Derivative Litigation Settlement Agreement”);
and
WHEREAS, counsel to the Plaintiffs and Microtune also
agreed that Microtune would pay a Plaintiffs’ derivative
award fee for an amount not exceeding $1,125,000.00 (the
“Cash Fund”); and
WHEREAS, Microtune further agreed to pay the cost of the
notice of settlement;
WHEREAS, the Parties previously agreed, as set forth in
the Agreement, to compromise, settle and resolve all disputes,
claims, actions, suits, demands, causes of action, debts,
liabilities, agreements, contracts or promises, arising out of or
related to the Policies issued by the D&O Carriers pursuant to
which coverage was sought in the Securities Class Action;
and
[***] CONFIDENTIAL TREATMENT REQUESTED BY
MICROTUNE, INC.
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A DDENDUM TO S ETTLEMENT AND R ELEASE A GREEMENT D ATED N OVEMBER 22, 2004
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
WHEREAS, the Parties now desire to compromise, settle and
resolve all disputes, claims, actions, suits, demands, causes of
action, debts, liabilities, agreements, contracts or promises,
arising out of or related to the Policies issued by the D&O
Carriers pursuant to which coverage is sought in the Derivative
Litigation.
NOW, THEREFORE
, in consideration of the mutual
promises and releases contained herein, the receipt and sufficiency
of which hereby are acknowledged, the Parties agree as
follows:
SETTLEMENT
1. Upon finalization of all settlement
documents, court approval thereof and the satisfaction of all
obligations undertaken by the Microtune parties in connection with
the settlement, the Parties agree as follows:
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a.
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Microtune will
pay [***];
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b.
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Sheffield and
Microtune will pay [***];
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c.
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Sheffield and
Microtune will pay on an 85% -15% basis the costs and expenses of
providing notice in the Derivative Settlement (“Derivative
Notice Expenses”) and
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d.
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Nothing in this
Addendum modifies Sheffield’s obligation in Paragraph 1.12 of
the Agreement to continue to reimburse Microtune for Defense Costs
incurred in connection with the Securities Class Action and the
Derivative Litigation on the same basis that St. Paul reimbursed
Microtune for the fee statements submitted prior to the June 24,
2004 mediation in the Securities Class Action.
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[***] CONFIDENTIAL TREATMENT REQUESTED BY
MICROTUNE, INC.
2
A DDENDUM TO S ETTLEMENT AND R ELEASE A GREEMENT D ATED N OVEMBER 22, 2004
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
2. As any obligations undertaken by St. Paul
with respect to the Derivative Litigation have been fully released
by the Agreement, the parties acknowledge that St. Paul is not
implicated in the terms of this Addendum, and need not obtain any
further release with respect to the Derivative
Litigation.
3. This Addendum is conditioned upon the
execution, final approval, and validity of the Derivative
Litigation Settlement Agreement, and upon the dismissal by
Plaintiffs in the Derivative Litigation, with prejudice, of all
claims that have been asserted, or could have been asserted, in
that action against Microtune and the Individual
Defendants.
4. The Parties declare, warrant and represent
that they have agreed to the terms of this Addendum. Each signatory
of this Addendum declares, warrants and represents that he/she has
the general and specific authority to enter into and execute this
Agreement on behalf of his/her respective
principals/clients.
5. T HE M ICROTUNE P ARTIES ’ R ELEASE OF THE D&O C ARRIERS W ITH R ESPECT TO THE D ERIVATIVE L ITIGATION :
Effective upon the finalization of
all settlement papers pertinent to the Derivative Settlement, and
conditioned upon the payment in full of Microtune’s and
Sheffield’s respective portions of the Cash Fund and
Derivative Notice Expenses, and Defense Costs as required by the
Agreement and this Addendum, the Microtune Parties, on their own
behalf and on behalf of each of their present,
