MUTUAL RELEASE AGREEMENT
RELATED TO
EBITDA AND EARNOUT PROVISIONS
THIS MUTUAL
RELEASE AGREEMENT (the “Agreement”) is hereby entered
into by and between Express-1 Expedited Solutions, Inc., a Delaware
corporation (the “Company”); Concert Group Logistics,
Inc., a Delaware corporation (“Buyer”); Concert Group
Logistics, LLC, an Illinois Limited Liability Company
(“Seller”); Daniel Para, a resident of Illinois
(“Selling Parties Representative”); Gerry Post, a
resident of Illinois (“Post”); Efrain Maldonado, a
resident of Illinois (“Maldonado”); John Musolino, a
resident of Illinois (“Musolino”) (Selling Parties
Representative, Post, Maldonado, and Musolino are referred to
herein as the “Principals”); Dan Para Investments, LLC,
a Delaware limited liability company (“Para
Investments”); the Gerald H. Post Trust dated
October 12, 2006 (“Post Trust”); and the John M.
Musolino Revocable Trust dated January 9, 2003 (“Musolino
Trust”) (Maldonado, Para Investments, Post Trust and Musolino
Trust are referred to herein as the “Members”),
hereinafter the “Parties”.
On
January 31, 2008, the Parties entered into an asset purchase
agreement (the “APA”). In addition to certain
consideration paid by Buyer to Seller at the closing of the
transactions set forth in the APA, the APA sets forth a mechanism
for a possible earn-out payment to be made by Buyer to Seller with
respect to the fiscal year ended 12/31/08 (“FY 2008”)
and with respect to the fiscal year ended 12/31/09 (“FY
2009”). Certain disputes have arisen with respect to the
calculation of the amount of the FY 2008 earn-out payment. The
Parties have agreed that, in settlement of all earn-out obligations
of the Company and the Buyer to the Seller, and all other
obligations of the Company and the Buyer to the Seller, the
Principals and/or the Members under the APA, a sum in the amount of
One Million One Hundred Thousand Dollars ($1,100,000) shall be paid
to the Seller.
The Members are
the sole members of Seller. Selling Parties Representative is a
principal of Para Investments. Post is the settler of the Post
Trust. Musolino is the settler of the Musolino Trust.
For and in
consideration of the Company’s payment of the sum of One
Million One Hundred Thousand Dollars ($1,100,000) to Seller, and
other good and valuable consideration received from and on behalf
of the Parties to each other, the receipt and sufficiency of which
consideration is hereby acknowledged, the Seller, the Principals,
and the Members (collectively the “CGL Releasing
Parties”) collectively do hereby globally, immediately and
forever release, remise, acquit, satisfy and discharge the Company
and the Buyer, and each of their affiliates, subsidiaries, parents,
officers, directors, attorneys, agents, employees, successors, and
assigns (collectively the “Company Released Parties”),
from any and all manner of claims, benefits, rights, sums of money,
causes of action, suits, debts, obligations, losses, expenses,
liabilities, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, claims and
demands whatsoever, in law or in equity, of whatever nature or
kind, known or unknown, which any of the Releasing Parties ever
had, now has, or ever may have, or which any affiliate, subsidiary,
parent, officer, director, attorney, agent, employee,
manager,
personal representative, heir, successor or assign of any of the
Releasing Parties ever had, now has, or ever may have, against the
Released Parties, related to or arising out of the earn-out
provisions of the APA and the Company EBIDTA and the financial
statements providing the basis thereof.
For and in
consideration of the CGL Releasing Parties’ agreements
hereunder, and other good and valuable consideration received from
and on behalf of the Parties to each other, the receipt and
sufficiency of which consideration is hereby acknowledged, the
Company Released Parties collectively do hereby globally,
immediately and forever release, remise, acquit, satisfy and
discharge the CGL Releasing Parties from any and all manner of
claims, benefits, rights, sums of money, causes of action, suits,
debts, obligations, losses, expenses, liabilities, accounts,
reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses,
damages, judgments, executions, claims and demands whatsoever, in
law or in equity, of whatever nature or kind, known or unknown,
which any of the Company Released Parties ever had, now has, or
ever may have, or which any affiliate, subsidiary, parent, officer,
director, attorney, agent, employee, manager, personal
representative, heir, successor or assign of any of the Company
Released Parties ever had, now has, or ever may have, against the
CGL Releasing Parties related to or arising out of the earn-out
provisions of the APA and the Company EBITDA and the financial
statements providing the basis thereof.
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