SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual
Release (this “Settlement”) is made as of this 14th day
of September 2009, by and between Roundy’s Supermarkets,
Inc., formerly known as Roundy’s, Inc.
(“Roundy’s”), a Wisconsin corporation, and Nash
Finch Company (“Nash Finch”), a Delaware
corporation.
WHEREAS , on or about
February 24, 2005, Roundy’s and Nash Finch executed an
Asset Purchase Agreement (“APA”), effectuating the sale
from Roundy’s to Nash Finch of the assets and associated
business of two wholesale distribution centers located in Lima,
Ohio, and Westville, Indiana, as well as various other assets as
described in the APA. The parties subsequently executed an
amendment to the APA, dated as of February 2, 2006.
WHEREAS , following the
closing of the APA, Roundy’s asserted that a post-closing
purchase price adjustment pursuant to Section 2.07 of the APA,
as amended, resulted in an additional amount owing from Nash Finch
to Roundy’s.
WHEREAS , following the
closing of the APA, Nash Finch notified Roundy’s of certain
claims it asserted against Roundy’s arising out of or
relating to the APA and the negotiations leading to the APA,
including, without limitation, certain indemnification claims under
the APA.
WHEREAS , on or about
February 11, 2008, Roundy’s filed an action against Nash
Finch in the United States District Court for the Eastern District
of Wisconsin, Case Number 08-C-0142, alleging a claim of breach of
contract against Nash Finch, as set forth more specifically
therein, relating to the post-closing purchase price adjustment
under Section 2.07 of the APA as amended (the
“Litigation”). As part of the Litigation, Nash Finch
asserted certain counterclaims and amended counterclaims against
Roundy’s arising out of or relating to the APA and the
negotiations leading to the APA, including, without limitation,
certain indemnification claims under the APA.
WHEREAS , the parties now
desire to fully and finally settle and compromise their dispute and
the Litigation.
NOW THEREFORE , in
consideration of the mutual covenants, conditions, and agreements
contained herein, and for other good and valuable consideration,
the adequacy and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Immediately upon the execution of this
Settlement, Roundy’s shall cause to be dismissed, with
prejudice, its claims against Nash Finch in the Litigation.
Additionally, and also immediately upon the execution of this
Settlement, Nash Finch shall cause to be dismissed, with prejudice,
its counterclaims against Roundy’s in the Litigation. The
dismissals contemplated by this paragraph shall be by joint
stipulation, each side to bear its own costs.
2. This Settlement is not and shall not
in any way be construed as an express or implied admission by any
party of any act of liability, fault, or wrongdoing whatsoever or
an admission of a violation of any agreement, law, statute, rule or
regulation, but is, instead, a compromise settlement of disputed
claims made in order to avoid the expense, burden, and
inconvenience of protracted litigation.
3. For purposes of this Settlement, the
terms “Nash Finch Released Parties” or “Nash
Finch Releasing Parties” shall mean Nash Finch, and each of
its current and former affiliates, subsidiaries, parent
corporations (in each case, whether direct or indirect), successors
or assigns, divisions, predecessors, transferors, transferees,
partners, trustees, members, officers, directors, employees,
shareholders, representatives, insurers, agents, consultants, and
attorneys, and all persons acting by, for, through, under or in
concert with any of them. The terms “Roundy’s Released
Parties” or “Roundy’s Releasing Parties”
shall mean Roundy’s, and each of its current and former
affiliates, subsidiaries, parent corporations (in each case,
whether direct or indirect), successors or assigns, divisions,
predecessors, transferors, transferees, partners, trustees,
members, officers, directors, employees, shareholders,
representatives, insurers, agents, consultants, and attorneys, and
all persons acting by, for, through, under or in concert with any
of them.
4. Nash Finch represents and warrants
that it is the sole owner of any and all Released Claims that were
or could have been made against the Roundy’s Released
Parties, an
