Exhibit 10.6
RELEASE AND SETTLEMENT AGREEMENT
This
Release and Settlement Agreement (the “Release”) is
entered into this 10 th day of August,
2007 by and between Glenview Capital Partners, L.P., Glenview
Institutional Partners, L.P., Glenview Capital Master Fund, Ltd.,
QDRF Master Ltd., Quadrangle Debt Opportunities Fund Master Ltd.,
Quadrangle Debt Recovery Income Fund LP, Quadrangle Debt Recovery
Income Fund Master Ltd , Quadrangle Debt Opportunities Fund Master
Ltd, Columbia Funds Master Investment Trust-Columbia High Income
Master Portfolio, Columbia Funds Variable Insurance Trust 1 —
Columbia High Yield Fund, Variable Series, The Mainstay Funds on
Behalf of its High Yield Corporate Bond Fund, The Mainstay Funds on
Behalf of its Diversified Income Fund, Mainstay VP
Series Fund, Inc. on Behalf of its High Yield Corporate Bond
and Deephaven Distressed Opportunities Trading Ltd. (collectively,
the “Series B Preferred Stockholders”), and
Haights Cross Communications, Inc. (“HCC”, and
collectively with the Series B Preferred Stockholders, the
“Parties”).
WITNESSETH:
WHEREAS,
certain of the Series B Preferred Stockholders commenced an
action against HCC on or about February 27, 2007 with the
filing of a Complaint in the Court of Chancery of the State of
Delaware in and for New Castle County, captioned Glenview
Capital Partners, L.P. et al. v. Haights Cross Communications,
Inc. , Civil Action No. 2757 (VCS) (the
“Action”), asserting claims under 8 Del. Code. §
220 and under a certain Investors Agreement, dated
December 10, 1999, between the Parties;
WHEREAS,
HCC has denied all of the material allegations of the
Series Preferred B Stockholders in the Action;
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WHEREAS,
certain of the Series B Preferred Stockholders hold shares of
HCC’s Series B Preferred Stock;
WHEREAS,
HCC, the Series A Preferred Stockholders, the Series B
Preferred Stockholders, and certain other parties, have agreed to
recapitalize HCC and, inter alia , change all the shares of
HCC’s Series B Preferred Stock into shares of the
HCC’s common stock pursuant to that certain Recapitalization
Agreement by and among the Company and the Investors named therein
dated June 29, 2007 (the “Recapitalization
Agreement”);
WHEREAS,
the Parties thus desire to settle any and all claims by and between
each other arising from or related to the Action, regardless where
filed, and to further resolve any and all claims which are or could
have been asserted in the Action on mutually agreeable terms in
order to avoid further expense, inconvenience, and the distraction
of litigation;
Whereas
the Parties and the Series A Preferred Stockholders desire to
terminate (i) an Investors Registration Rights Agreement,
dated as of December 10, 1999, by and among Haights Cross
Communications, Inc., Haights Cross Operating Company and the
Holders (as defined therein) (the “Investors Registration
Rights Agreement”), and (ii) an Investors Agreement,
dated as of December 10, 1999, by and among Haights Cross
Communications, Inc., Haights Cross Operating Company, the Existing
Stockholders (as defined therein) and the DLJMB Investors (as
defined therein), as amended by Amendment to Investors Agreement,
dated as of June 27, 2003, (the “Investors
Agreement”), and release any and all claims by and between
each other arising from the Investors Registration Rights Agreement
and/or the Investors Agreement,
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NOW
THEREFORE, in consideration of the mutual promises exchanged herein
and other good and valuable consideration, receipt of which is
acknowledged, the Parties and the Series A Preferred
Stockholders hereby agree as follows:
DISMISSAL OF ACTION
Contemporaneously
with the execution and delivery of this Release, counsel for the
Parties shall execute a Stipulation and Order of Dismissal,
dismissing the Action with prejudice and without costs to any
party. Counsel for the Series B Preferred Stockholders shall
file the Stipulation and Order of Dismissal with the Court promptly
after its execution.
RELEASES AND TERMINATION
1. The
Series B Preferred Stockholders, on behalf of themselves and
their predecessors, successors and assigns (collectively, the
“Series B Preferred Stockholder Releasors”),
irrevocably release and forever discharge HCC and its predecessors,
successors and assigns, and each of their past or present parents,
subsidiaries, affiliates, and each past or present officer,
director, shareholder, employee, contractor, agent, or
representative (collectively, the “HCC Releasees”),
from any and all claims, demands, actions, causes of action, suits,
debts, liens, demands, contracts, liabilities, agreements,
promises, representations, obligations, costs, expenses, losses or
damages of any kind whatsoever (collectively,
“Claims”), whether known or unknown, fixed or
contingent, suspected or claimed, which the Series B Preferred
Stockholder Releasors had, now have, or claim to have had against
the HCC Releasees arising from, or relating in any way, to the
claims asserted in the Action, including any claims related to the
validity of any employment agreement currently in effect between
HCC and management; provided, however, nothing herein shall
constitute a release of any Claims arising from any HCC
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Releasee’s gross negligence, fraud or willful misconduct; and
further provided, however, that the Parties’ rights and
obligations under this Release and under the Recapitalization
Agreement and transactions contemplated therein shall remain in
full force and unaffected by this Release.
2. HCC,
on behalf of itself and its predecessors, successors and assigns
(collectively, the “HCC Releasors”), irrevocably
releases and forever discharges the Series B Preferred
Stockholders and their predecessors, successors and assigns, and
each of their past or present parents, subsidiaries,
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