Exhibit 10.6
MUTUAL GENERAL
RELEASE
I.
PARTIES
This Mutual
General Release (“Release”) is entered into as of
April 20, 2005 among the following parties (individually a
“Party” and collectively the
“Parties”)(1):
A.
George L. Chelius
(“GC”), as an individual and in his capacity as an
executor of the will and estate of Alan James, pursuant to Letters
Testamentary (Case Number 050290219), dated February 17, 2005,
issued by the Circuit Court of the State of Oregon for the County
of Multnomah (the “Estate”), and in his capacity as a
trustee (a “Trustee”) under any trusts (the
“Trusts”) created under the Last Will and Testament of
Alan James, dated March 12, 2004, and in any and all other
capacities in which he is or may be deemed to be a successor in
interest to Alan James (collectively, the “GC
Representative”), and his Related Entities(2);
B.
Eric Epperson
(“EE”), as an individual and in his capacity as an
executor of the Estate, in his capacity as a Trustee under the
Trusts and in any and all other capacities in which he is or may be
deemed to be a successor in interest to Alan James (the
“EE” Representative and together with the GC
Representative, the “Representatives”), and his Related
Entities;
C.
William A. Furman, as
an individual (“Furman”), and his Related
Entities;
D.
The Greenbrier
Companies, Inc., a Delaware corporation together with its
officers and directors in their capacities as such other than the
James Parties (as defined herein), subsidiaries and divisions,
including, without limitation, Greenbrier Leasing Corporation
(collectively, the “Company”);
E.
William A. Furman,
Benjamin R. Whiteley, C. Bruce Ward, Victor G. Atiyeh, A. Daniel
O’Neal, Jr., Duane C. McDougall and Donald A. Washburn
each in his capacity as a director of the Company (the
“Directors”), and each of his Related
Entities;
(1)
Any references to “Party” or “Parties”
hereinafter shall also include the Party’s or Parties’
Related Entities.
(2)
For purposes of this Release, the “Related Entities” of
any Party shall be defined as: the Party’s successors,
predecessors, assignees, heirs, legatees, devisees, executors,
administrators, legal representatives, consultants, officers and
directors; and any other representative, person or entity claiming
by, through or under the Party.
II.
RECITALS
This Release is
made with reference to the following facts:
A.
The Representatives
and their respective Related Entities, other than the Partnership
(as defined herein) and its Related Entities, are hereinafter
collectively referred to as the “James
Parties.”
B.
The Company and their
respective Related Entities, including the Directors and each of
their respective Related Entities, are hereinafter collectively
referred to as the “Greenbrier Parties.”
C.
Furman and his
Related Entities, other than the Partnership and its Related
Entities, are hereinafter collectively referred to as the
“Furman Parties.”
D.
On or about
July 1, 1994, Alan James (“James”), Furman and the
Company entered into a Stockholders’ Agreement, as amended
(the “Stockholders’ Agreement”), with respect to
shares of the Company’s common stock, par value $0.001 (the
“Shares”) owned by Furman and James.
E.
Furman and James were
partners in James Furman & Company, an Oregon partnership
or de facto partnership (the “Partnership”).
F.
On or about
July 13, 2004, the Company adopted a stockholder rights plan,
as amended (the “Rights Plan”).
G.
On or about
August 4, 2004, James filed a complaint in the Court of
Chancery of the State of Delaware in and for New Castle County (the
“Litigation”), entitled; Alan James v. William A.
Furman, Benjamin R. Whiteley, C. Bruce Ward, Victor G. Atiyeh, A.
Daniel O’Neal, Jr., Duane C. McDougall and The
Greenbrier Companies, Inc., Civil Action No. 597-N,
related to, among other matters, the Stockholders’ Agreement
and the Rights Plan.
H.
On January 28,
2005, James died.
I.
The Representatives,
Furman and the Company have duly executed and delivered a
Settlement Agreement, dated as of April 20, 2005 (the
“Settlement Agreement”) which provides for the Parties
to execute and deliver a mutual general release in the form of this
Release.
J.
Pursuant to the
Settlement Agreement, the parties thereto have agreed to dismiss
the Litigation with prejudice and to enter into this Release, which
releases any and all claims related to the Litigation.
K.
The Parties intend to
include within the scope of this Release all matters that in any
way relate to or arise out of:
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1.
Any act or failure to
act of James, the Representatives or any of their Related Entities
at any time prior to the moment this Release is executed by the
Parties, other than those acts or failures to act relating to
the Partnership or the conduct of the affairs of the Partnership
(the “Reserved James Matters”), (collectively the
“Disputed James Matters”).
2.
Any act or failure to
act by any of the Greenbrier Parties at any time prior to the
moment this Release is executed by the Parties, other than those
acts or failures to act relating to the Partnership or the conduct
of the affairs of the Partnership (the “Reserved Greenbrier
Matters”), (collectively, the “Disputed Furman
Matters”).
3.
Any act or failure to
act by any of the Furman Parties at any time prior to the moment
this Release is executed by the Parties, other than those acts or
failures to act relating to the Partnership or the conduct of
the affairs of the Partnership (the “Reserved Furman
Matters”), (collectively, the “Disputed Furman
Matters”).
L.
The Parties intend to
include within the scope of this Release all known or presently
unknown, suspected or unsuspected, contingent or fixed complaints,
grievances, allegations, demands, liabilities, losses, obligations,
promises, damages, costs, expenses (including, without limitation,
attorneys’ fees), lawsuits (including the Litigation),
actions (in law, equity or otherwise), causes of action, rights and
privileges of whatever kind that, except for the Reserved James
Matters, the Reserved Greenbrier Matters and the Reserved Furman
Matters (collectively, the “Reserved Claims”),
which:
1.
Any of the James
Parties may have or ever come to have against any of the Greenbrier
Parties or the Furman Parties and that in any way relate to or
arise out of the Disputed Greenbrier Matters or the Disputed Furman
Matters, excluding Reserved Claims (collectively referred to as the
“James Claims”).
2.
Any of the Greenbrier
Parties may have or ever come to have against any of the James
Parties that in any way relate to or arise out of the Disputed
James Matters, excluding Reserved Claims (collectively referred to
as the “Greenbrier Claims”).
3.
Any of the Furman
Parties may have or come to have against any of the James Parties
that in any way relate to or arise out of the Disputed James
Matters, excluding Reserved Claims (collectively referred to as the
“Furman Claims”).
III.
RELEASES
A.
James
Parties: Release of Greenbrier Parties and Furman
Parties . In consideration of the terms and
provisions of this Release, the Settlement Agreement and the
purchase and sale of shares of Company Common Stock
3
pursuant to that Stock
Purchase Agreement dated, as of April 20, 2005 (the
“Stock Purchase Agreement”), by and among the
Representatives, Furman and the Company, and the transactions
contemplated by such agreements including any exhibits and
schedules thereto (collectively, the
“Transactions”), each of the James Parties shall, and
hereby does, relieve, release and forever discharge each of the
Greenbrier Parties and Furman Parties of and from any and all James
Claims.
B.
Greenbrier
Parties: Release of James Parties . In consideration of the
terms and provisions of this Release, the Settlement Agreement, the
Stock Purchase Agreement and the Transactions, each of the
Greenbrier Parties shall, and hereby does, relieve, release and
forever discharge each of the James Parties of and from any and all
Greenbrier Claims.
C.
Furman
Parties: Release of James Parties . In consideration of the
terms and provisions of this Release, the Settlement Agreement, the
Stock Purchase Agreement and the Transactions, each of the Furman
Parties shall, and hereby does, relieve, release and forever
discharge each of the James Parties of and from any and all Furman
Claims.
D.
Unknown Claims and
Risks Released by the James Parties . It is understood by the James
Parties that there is a risk that after the execution of this
Release, any of the James Parties may incur or suffer losses,
damages or injuries that are included within the definition of
James Claims, but that are unknown or unanticipated, for whatever
reason, at the time of the execution of this Release
(“Unknown James Injury Risk”). Further, it is
understood by the James Parties that there is a risk that loss or
damage to the James Parties presently known may be or become, for
whatever reason, greater than the James Parties now expect or
anticipate (“Unknown James Magnitude Risk”). The
James Parties understand, accept and assume both the Unknown James
Injury Risk and the Unknown James Magnitude Risk and intend that
the releases contained herein shall apply to all unknown and
unanticipated losses, damages or injuries included with the
definition of James Claims, as well as those known and
anticipated.
E.
Unknown Claims and
Risks Released by Greenbrier Parties . It is understood by the
Greenbrier Parties that there is a risk that after the execution of
this Release, any of the Greenbrier Parties may incur or suffer
losses, damages or injuries that are included within the definition
of Greenbrier Claims, but that are unknown or unanticipated, for
whatever reason, at the time of the execution of this release
(“Unknown Greenbrier Injury Risk”). Further, it
is understood by the Greenbrier Parties that there is a risk that
loss or damage to the Greenbrier Parties presently known may be or
become, for whatever reason, greater than the Greenbrier Parties
now expect or anticipate (“Unknown Greenbrier Magnitude
Risk”). The Greenbrier Parties understand, accept and
assume both the Unknown Greenbrier Injury Risk and the Unknown
Greenbrier Magnitude Risk and intend that the releases contained
herein shall apply to all unknown and unanticipated
losses,
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damages or injuries included
with the definition of Greenbrier Claims, as well as those known
and anticipated.
F.
Unknown Claims and
Risks Released by the Furman Parties . It is understood by the Furman
Parties that there is a risk that after the execution of this
Release, any of the Furman Parties may incur or suffer losses,
damages or injuries that are included within the definition of
Furman Claims, but that are unknown or unanticipated, for whatever
reason, at the time of the execution of this Release
(“Unknown Furman Injury Risk”). Further, it is
understood by the Furman Parties that there is a risk that loss or
damage to the Furman Parties presently known may be or become, for
whatever reason, greater than the Furman Parties now expect or
anticipate (“Unknown Furman Magnitude Risk”). The
Furman Parties understand, accept and assume both the Unknown
Furman Injury Risk and the Unknown Furman Magnitude Risk and intend
that the releases contained herein shall apply to all unknown and
unanticipated losses, damages or injuries included with the
definition of Furman Claims, as well as those known and
anticipated.
G.
The Parties intend
and agree that the releases set forth in this mutual Release shall
be effective as a bar to any and all currently unsuspected, unknown
or partially known claims within the scope of their express terms
and provisions, other than the Reserved Claims. Accordingly,
the Parties hereby expressly waive any and all rights and benefits
conferred upon them by the provisions of Section 1542 of the
California Civil Code and all similar provisions of the laws of any
other state, territory or other jurisdiction.
Section 1542 reads in pertinent part:
“ A general release does not extend to claims
that that creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by him may
have materially affected his settlement with the debtor.
”
The Parties hereby
acknowledge that the foregoing waiver of the provisions of
Section 1542 of the California Civil Code and all similar
provisions of the laws of any other state, territory or other
jurisdiction was separately bargained for and that they would not
enter into this agreement unless it included a broad release of all
unknown claims, including specifically any claim of fraud or
misrepresentation in the indu
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