SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Settlement Agreement") is made
and entered into effective as of November 25, 1996, by and among
AMERICAN INDUSTRIAL PROPERTIES REIT (the "Trust"), ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") (▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ are collectively, the "Trust Managers"), on the one
hand and PURE WORLD, INC. ("Pure World") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇") (collectively, the "Pure World Parties"), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("Strougo") on the other hand (sometimes collectively
referred to hereinafter as the "Parties").
RECITALS:
1. Disputes have arisen between the Pure World parties, on the
one hand, and the Trust and Trust Managers, on the other, which
have led to a series of expensive proxy contests and the
institution of litigation against one another (the "Disputes").
2. WHEREAS, the Trust filed suit against Pure World and
▇▇▇▇▇▇▇, currently pending in the United States District Court
for the Northern District of Texas, Dallas Division (the
"Court"), in a case styled American Industrial Properties REIT v.
Pure World, Inc., et al.; Case No. 3:96-CV-0068-H (the
"Lawsuit"). Additionally, Strougo filed a lawsuit in the Court
styled ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ v. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, et al., No. 3:96-CV-
0505-H, which has been consolidated in and with the Lawsuit.
3. WHEREAS, Pure World filed individual and shareholder
derivative claims and Strougo filed shareholder derivative claims
in the Lawsuit against the Trust and the Trust Managers.
4. WHEREAS, the Parties desire to enter into this Settlement
Agreement for the purpose of setting forth all agreements and
understandings reached among them with respect to settlement of
the Lawsuit.
5. WHEREAS, the Parties believe that the remedial provisions of
the settlement are reasonable and appropriate business measures
and in contemplation of the Court's approval of the settlement
have begun to implement many of the remedial measures.
6. WHEREAS, the Parties desire to settle all claims,
crossclaims, counterclaims, and appeals, among them without
admitting liability and hereby specifically denying any liability
whatsoever.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual agreements
herein expressed, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Parties executing this Settlement Agreement hereby agree as
follows:
A. Undertakings of the Trust and the Trust Managers.
1. Amendment of Bylaws. Prior to final approval of
this Settlement Agreement by the Court, the Trust and/or the
Trust Managers will cause the Bylaws of the Trust to be amended
as follows:
(a) To provide that trust manager nominees who
have not been previously elected as trust managers by the
shareholders of the Trust (as well as trust managers who have
been previously elected as trust managers by the shareholders of
the Trust) shall be elected at the annual meeting of shareholders
by the affirmative vote of the holders of a majority of the
outstanding shares of the Trust.
(b) To provide that a vacancy on the Board of
Trust Managers may be filled by a majority of the remaining Trust
Managers, though less than a quorum, or by the holders of
majority of the outstanding shares of the Trust.
(c) To provide that the cash compensation of a
trust manager shall not be increased by more than 20% over the
prior year without the approval of the holders of a majority of
the shares cast at the annual meeting of shareholders of the
Trust.
(d) To provide that, in the event the Trust
receives an offer to purchase all or substantially all of the
assets of the Trust, or if the Trust receives a proposal for a
merger transaction in which the Trust will not be the surviving
entity, the board of trust managers will create a committee
consisting entirely of Independent Trust Managers (as defined in
the Trust's Declaration of Trust) who shall, consistent with
their fiduciary duties, review any such offer and make a
recommendation to the board of trust managers.
(e) To provide that when making a determination
of whether to declare a dividend, the Trust Managers shall make
their decision consistent with their fiduciary duties as Trust
Managers.
(f) To provide that each of the foregoing
provisions may be amended only by the vote of the holders of a
majority of the outstanding shares of the Trust.
2. Repeal of Bylaw Provisions Limiting Share
Ownership.
(a) Within five business days of the execution of
this Settlement Agreement, the Trust and/or the Board of Trust
Managers will repeal Article XIII of the Trust's Bylaws, which
was adopted in September 1996.
(b) The Trust and/or the Board of Trust Managers
shall repeal Article IX of the Trust's Bylaws, relating to a 9.8%
limitation on share ownership, on or before the earliest of the
following dates or events:
(i) an affirmative vote of the holders of a
majority of the outstanding shares of the Trust to repeal Article
IX;
(ii) the occurrence of a vote on a proposal
by the Trust Managers to amend the Declaration of Trust to add a
9.8% limitation on share ownership consistent with industry
standard, which fails to receive the requisite number of votes;
(iii) July 1, 1997, unless on or before
June 30, 1997, the Trust has filed a proxy statement with the
Securities and Exchange Commission which contains a proposal to
be voted on by shareholders to amend the Declaration of Trust to
add a 9.8% limitation on share ownership consistent with industry
standard; or
(iv) December 1, 1997.
(c) The Trust and the Trust Managers shall not
adopt or implement any other bylaw that attempts to limit the
number or percentage of shares which any current or future
shareholder of the Trust may purchase or own or that attempts to
restrict the rights appurtent to those shares without shareholder
approval.
3. Number of Trust Managers. As soon as practicable
after final approval of this Settlement Agreement by the Court,
the Trust shall increase the number of trust managers on the
board of trust managers to five, with the additional two trust
managers being Independent Trust Managers (as defined in the
Trust's Declaration of Trust).
4. Amendment of Declaration of Trust. On or before
June 30, 1997, the Trust will file a proxy statement with the
Securities and Exchange Commission which includes a proposal to
be voted upon by shareholders to amend the Declaration of Trust
to provide that a special meeting of shareholders may be called
by a majority of the Trust Managers, any officer of the Trust or
the holders of at least 5% of all the shares entitled to vote at
such meeting.
B. Undertaking of the Pure World Parties.
1. Stock Purchase Agreement. Prior to final approval
of this Settlement Agreement by the Court, and as a condition
precedent to this settlement, Pure World shall enter into a Stock
Purchase Agreement with USAA Real Estate Company ("USAA")
pursuant to which Pure World will sell to USAA all shares of the
Trust's stock owned by Pure World, and all conditions precedent
to closing such Stock Purchase Agreement (excluding final
approval of this Settlement Agreement) shall have been satisfied.
2. STANDSTILL AGREEMENT. The Pure World parties
agree that for a period of five (5) years from the date hereof,
neither of them nor any affiliate nor any entity owned or
controlled by either of them or under common ownership or control
with either of them will: (a) acquire, offer to acquire, or
agree to acquire, directly or indirectly, by purchase or
otherwise, any securities or direct or indirect rights or options
to acquire (through purchase, exchange, conversion or otherwise)
any securities of Trust, (b) make, or in any way participate,
directly or indirectly, in any "solicitation" of "proxies" (as
such terms are used in the proxy rules of the Securities and
Exchange Commission) to vote (including by the execution of
actions by written consent) or seek to advise, encourage or
influence any person or entity with respect to the voting of any
securities of the Trust, (c) form, join or in any way participate
in any "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) with respect to any securities
of the Trust, (d) otherwise act, alone or in concert with others,
to seek to control or influence the management, board of
directors (or trust managers) or policies of the Trust, (e)
initiate, propose or otherwise solicit shareholders for the
approval of one or more shareholder proposals (as described in
the Securities Exchange Act of 1934) seeking to acquire or affect
control of the Trust, or (f) acquire any interest in any claims,
mortgages, notes or any other legal or financial obligations of
the Trust.
C. Payments to Pure World and Payment of Attorneys' Fees
and Expenses to Strougo.
1. On or before November 25, 1996, the Trust shall
join Pure World in presenting an agreed order to the Court
directing the Clerk of the Court to pay to Pure World all monies
deposited into the Registry of the Court by the Trust in
connection with its interpleader claim, which sum represents
dividends payable to Pure World and withheld by the Trust,
together with all interest accrued thereon. In addition, the
Trust shall pay to Pure World on or before November 25, 1996, the
sum of $3,000.00, plus interest at the rate of 10% per annum,
which represents the difference between the full dividend payable
to Pure World and the amount deposited by the Trust in the
Registry of the Court.
2. In addition to the foregoing, the Trust agrees to
pay to Pure World, within three business days after final
approval of this Settlement Agreement by the Court, the sum of
$825,000.00. It is understood that the payment of this sum is in
consideration for the releases being given by Pure World and
▇▇▇▇▇▇▇ in connection with this Settlement Agreement, for the
undertakings of Pure World and ▇▇▇▇▇▇▇ set forth in this
Settlement Agreement, and for attorneys' fees and expenses
incurred by Pure World in connection with the Disputes and with
the Lawsuit. Pure World will apply to the Court for
reimbursement of its attorneys' fees and expenses incurred in
connection with the Lawsuit, in an amount not to exceed
$400,000.00. The Trust shall pay to Pure World, within three
business days of final approval of this Settlement Agreement by
the Court, such fees and expenses as may be awarded by the Court,
plus such additional amount as is necessary to make the total
payment to Pure World under this paragraph C.2 equal $825,000.00.
3. In connection with the settlement contemplated by
this Settlement Agreement, Strougo's counsel will apply to the
Court for an award of attorneys' fees, in an amount not to exceed
$120,000.00, and reimbursement of expenses incurred in connection
with the Lawsuit, in an amount not to exceed $10,000.00. The
Trust and the Trust Managers agree that they will not oppose
Strougo's counsel's application for an award of attorneys' fees
and reimbursement of expenses in the maximum amounts set forth
herein. The Trust shall pay Strougo's counsel such fees and
expenses, in an amount not to exceed the amounts specified in
this paragraph, as may be awarded by the Court within five
business days of final approval of this Settlement Agreement by
the Court.
D. Court Approval Required.
This Settlement Agreement is conditioned upon, and made
subject to, final approval thereof by the Court. In the event
the Court does not approve the Settlement Agreement, in whole or
in any part, the Settlement Agreement shall be null and void and
of no further effect. The Trust shall bear all costs and
expenses of providing to the Trust's shareholders such notice of
this Settlement Agreement and of the hearing to be held thereon
as may be required by the Court. In the event that the
settlement is not approved by the Court, Pure World, Strougo and
their counsel shall not be required to reimburse the Trust for
the cost of such notice.
E. Litigation Abatement. The Parties agree to notify the
Court regarding this Settlement Agreement and request that all
proceedings, except proceedings necessary to obtain approval of
this Settlement Agreement, be abated from November 14, 1996,
until the earlier of (a) the date of final approval by the Court
of this Settlement Agreement, or (b) the date on which any Party
to this Settlement Agreement delivers written notice to the other
Parties that the settlement contemplated herein will not be
consummated by the non-occurrence of a condition precedent to
this Settlement Agreement. In the event the settlement is not
consummated or the Settlement Agreement is not approved by the
Court, each Party agrees that any deadlines pending as of
November 14, 1996 (including, but not limited to, the deadline
for the Trust to file a notice of appeal of the Court's November
12, 1996 Order granting Pure World's Application for Preliminary
Injunction (the "Preliminary Injunction Order")) shall be
extended on a day-for-day basis for each day of the abatement
period. The Parties also agree to seek a stay, pending final
approval of this Settlement Agreement, of that part of the
Preliminary Injunction Order which applies to Article IX of the
Trust's Bylaws (provided that the Trust shall not seek to apply
said Article IX to any shares of the Trust acquired between
September 9, 1996 and November 20, 1996). In consideration of
the covenants in paragraph A.2. of this Settlement Agreement, the
Parties agree to request that the Court dissolve the Preliminary
Injunction Order as part of its final approval of this Settlement
Agreement. In the event the Trust determines that its right of
appeal of the Preliminary Injunction Order is not preserved by
this litigation abatement set forth herein, it may file a notice
of appeal of the Preliminary Injunction Order. The Trust shall
dismiss any such appeal immediately upon the Court's final
approval of this Settlement Agreement.
F. It is expressly understood that this Stipulation and
any proceeding in connection therewith are not, and shall not be
construed or invoked by any person to be, an admission by any of
the Parties of any liability or wrongdoing with respect to any of
the facts or claims alleged in or arising out of or in any way
relating to the subject matter of the Lawsuit, nor shall this
Settlement Agreement or any of its terms or the negotiations or
proceedings connected with it be offered or received in evidence
as an admission of wrongdoing on the part of the Parties or any
liability therefore.
G. Agreed Dismissals.
Upon final approval of this Settlement Agreement by the
Court, the Parties shall file Agreed Motions to Dismiss With
Prejudice in the Lawsuit. Each Party shall bear its own costs
and attorneys' fees, except as otherwise specified in this
Settlement Agreement.
H. Press Release.
Each of the Trust and Pure World agrees that it will
provide to the other a copy of any proposed press release or
public filing, which describes the Settlement Agreement, not less
than two hours prior to its issuance or filing, and that it will
consider any comments the other may offer about the form or
substance of such release or filing.
I. MUTUAL RELEASES.
1. The Trust, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually, and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually, for the purpose of binding
themselves and their heirs, legal representatives, successors and
assigns, and entities with which they are affiliated, including,
but not limited to, all persons or entities claiming by, through
or under any of them, hereby RELEASE, WAIVE, ACQUIT, AND FOREVER
DISCHARGE to the maximum extent permitted under applicable law,
Pure World, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, and their respective prior,
current and future officers, employees, directors, shareholders,
receivers and conservators, and their respective heirs, legal
representatives, successors and assigns of and from any and all
actions, causes of action, liabilities, claims, counterclaims,
effective defenses, offsets, demands, losses, damages (the
"▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Trust Claims") of any kind or nature
whatsoever, in law or in equity, known or unknown, contingent or
fixed, arising under contract, tort or otherwise, and whether
based on facts known or unknown, and existing on the date hereof,
or which may arise in the future based upon facts and
circumstances which exist or existed on or prior to the date
hereof (excluding, however, any ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Trust Claims
for breach of any further agreement, representation, warranty or
covenant contained in, or for any misrepresentation under, this
Settlement Agreement or any of the documents executed in
connection with or pursuant hereto), including, without
limitation, any and all actions, causes of action, liabilities,
claims, counterclaims, demands, losses and damages asserted or
that could have been asserted in the Lawsuit, or sounding in,
arising from or any way relating to breach of contract, fraud,
deceit, tortious interference, breach of obligations of good
faith and fair dealing, misrepresentation, or deceptive trade
practices, or federal or state securities violations existing
under or arising out of, directly or indirectly, or incurred in
respect of, expressly including, but not limited to, claims for
breach of fiduciary duty, tortious interference with contracts
and business opportunities, fraud in a real estate transaction
under Section 27.01 of the Texas Business and Commerce Code or
deceptive trade practices pursuant to Section 17.41 et seq. of
the Texas Business and Commerce Code. This provision shall not
be construed as an admission of any liability by Pure World,
▇▇▇▇▇▇▇, Strougo or any other entity or person. WITH RESPECT TO
THE WOLCOTT, BRICKER, AND TRUST CLAIMS, WOLCOTT, BRICKER, AND THE
TRUST, FOR THE PURPOSE OF BINDING THEMSELVES AND THEIR HEIRS,
LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AND AFFILIATES,
AND FOR ALL PERSONS OR ENTITIES CLAIMING BY, THROUGH OR UNDER ANY
OF THEM, HEREBY EXPRESSLY WAIVE, RELEASE AND DISCHARGE ANY AND
ALL CLAIMS, RIGHTS AND BENEFITS UNDER THE TEXAS DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT, ART. 17.41, OF TEX. BUS. AND
COM. CODE, AS WELL AS UNDER ANY STATUTORY, COMMON LAW OR OTHER
PROVISIONS FOR PUNITIVE, TREBLE OR ANY OTHER TYPES OF DAMAGES IN
EXCESS OF ANY ACTUAL DAMAGES INCURRED, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW. COUNSEL FOR THE TRUST JOINS IN THE
EXECUTION HEREOF FOR THE PURPOSE OF MEETING THE STATUTORY
REQUIREMENTS OF ART. 17.42 OF THE TEXAS DECEPTIVE TRADE PRACTICES-
CONSUMER PROTECTION ACT.
2. PURE WORLD, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, individually, for
the purpose of binding themselves and their heirs, legal
representatives, successors and assigns, and entities with which
they are affiliated, including, but not limited to, all persons
or entities claiming by, through or under any of them, hereby
RELEASE, WAIVE, ACQUIT, AND FOREVER DISCHARGE to the maximum
extent permitted under applicable law, the Trust and the Trust
Managers, and their respective prior, current and future
officers, employees, directors, trust managers (including, but
not limited to, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇), shareholders, receivers and
conservators, insurers, and their respective heirs, legal
representatives, successors and assigns of and from any and all
actions, causes of action, liabilities, claims, counterclaims,
effective defenses, offsets, demands, losses, damages (the
"Individual Claims") of any kind or nature whatsoever, in law or
in equity, known or unknown, contingent or fixed, arising under
contract, tort or otherwise, and whether based on facts known or
unknown, and existing on the date hereof (excluding, however, any
Individual Claims for breach of any agreement, representation,
warranty or covenant contained in, or for any misrepresentation
under, this Settlement Agreement or any of the documents executed
in connection with or pursuant hereto), including, without
limitation, any and all actions, causes of action, liabilities,
claims, counterclaims, demands, losses and damages asserted or
that could have been asserted in the Lawsuit, or sounding in,
arising from or any way relating to breach of contract, fraud,
deceit, tortious interference, breach of obligations of good
faith and fair dealing, misrepresentation, or deceptive trade
practices, or federal or state securities violations existing
under or arising out of, directly or indirectly, or incurred in
respect of, expressly including, but not limited to, claims of
breach of fiduciary duty, tortious interference with contracts
and business opportunities, fraud in a real estate transaction
pursuant to Section 27.01 of the Texas Business and Commerce Code
or deceptive trade practices pursuant to Section 17.41 et seq. of
the Texas Business and Commerce Code. This provision shall not
be construed as an admission of any liability by the Trust, the
Trust Managers or any other entity or person. WITH RESPECT TO
PURE WORLD'S, ▇▇▇▇▇▇▇'▇ AND ▇▇▇▇▇▇▇'▇ CLAIMS, PURE WORLD, ▇▇▇▇▇▇▇
AND STROUGO, FOR THE PURPOSE OF BINDING THEMSELVES AND THEIR
HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AND
AFFILIATES, AND FOR ALL PERSONS OR ENTITIES CLAIMING BY, THROUGH
OR UNDER ANY OF THEM, HEREBY EXPRESSLY WAIVE, RELEASE AND
DISCHARGE ANY AND ALL CLAIMS, RIGHTS AND BENEFITS UNDER THE TEXAS
DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, ART. 17.41, OF
TEX. BUS. AND COM. CODE, AS WELL AS UNDER ANY STATUTORY, COMMON
LAW OR OTHER PROVISIONS FOR PUNITIVE, TREBLE OR ANY OTHER TYPES
OF DAMAGES IN EXCESS OF ANY ACTUAL DAMAGES INCURRED, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW. COUNSEL FOR PURE
WORLD AND STROUGO JOIN IN THE EXECUTION HEREOF FOR THE PURPOSE OF
MEETING THE STATUTORY REQUIREMENTS OF ART. 17.42 OF THE TEXAS
DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT.
3. Pure World and Strougo derivatively on behalf of
the Trust for the purpose of binding themselves and their heirs,
legal representatives, successors and assigns, and entities with
which they are affiliated, including, but not limited to, persons
or entities claiming by, through, or under any of them, hereby
RELEASE, WAIVE, ACQUIT, AND FOREVER DISCHARGE to the maximum
extent permitted under applicable law, the Trust and the Trust
Managers, and their respective prior, current, and future
officers, employees, directors, trust managers (including, but
not limited to, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇), shareholders, advisors,
receivers and conservators, insurers, and their respective heirs,
legal representatives, successors and assigns of and from any and
all actions, causes of action, liabilities, claims, third-party
claims, counterclaims, effective defenses, offsets, demands,
losses, damages, of any kind or nature whatsoever, known or
unknown, contingent or fixed, (including, but not limited to, any
claims arising under federal or state law relating to the alleged
breach of fiduciary duty, negligence, waste, violations of the
federal securities laws or otherwise) and whether based on facts
known or unknown, which were or could have been brought, and
existing on the date hereof, arising from or relating to the
subject matter of the Lawsuit.
J. NO DURESS. The parties hereto have entered into this
Settlement Agreement voluntarily and with consent of counsel for
valuable consideration, and not by reason of any fraud, duress,
undue influence or mistake. Each party represents and warrants
that (a) they are competent, (b) and they are represented by
legal counsel in connection with the execution of this Settlement
Agreement, (c) they are not in a significantly disparate
bargaining position, and (d) they are knowledgeable and fully
able to evaluate the merits and risks of this transaction.
K. GOVERNING LAW, ETC. This Settlement Agreement shall be
governed by and construed in accordance with the laws of the
State of Texas and the United States of America. The parties
hereto hereby irrevocably waive, to the fullest extent permitted
by law, any objection which any of them may now or hereafter have
to the laying of venue of any suit, action or proceeding arising
out of or relating to this Settlement Agreement or the
transactions contemplated hereby in the United States District
Court for the Northern District of Texas, Dallas Division, and
hereby further irrevocably waive any claim that any such suit,
action or proceeding brought in any such court has been brought
in an inconvenient forum. The Parties hereto hereby irrevocably
agree that any proceeding against any of the Parties, arising
out of or in connection with this Settlement Agreement or the
transactions contemplated hereby shall be brought in the United
States District Court for the Northern District of Texas, Dallas
Division.
L. MISCELLANEOUS. As used in this Settlement Agreement:
(a) any singular term shall include the plural, and vice versa,
even though the term in question is defined collectively or
singularly; (b) all references to "including" or similar
references shall be deemed to be followed by the phrase "without
limitation;" (c) the headings contained in this Settlement
Agreement are for convenience of reference only, and shall be
afforded no significance in the construction or interpretation
hereof. This Settlement Agreement has been drafted by counsel
for all Parties.
M. ENTIRE AGREEMENT. This Settlement Agreement embodies
the entire agreement among the parties hereto and supersedes all
prior proposals, negotiations, agreements and understandings
relating to the subject matter hereof. There are no oral
agreements, understandings or representations upon which any
party hereto is relying in executing this Settlement Agreement.
N. SEVERABILITY. Subsequent to final approval of the
Settlement Agreement by this Court and consummation of the
settlement contemplated herein, if any provision of this
Settlement Agreement is held to be illegal, invalid or
unenforceable under any current or future law, and if the rights
or obligations of the parties under this Settlement Agreement
would not be materially and adversely affected thereby, such
provision shall be fully separable, and this Settlement Agreement
shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part thereof, the
remaining provisions of this Settlement Agreement shall remain in
full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance therefrom.
In lieu of such illegal, invalid or unenforceable provision,
there shall be added automatically as a part of this Settlement
Agreement, a legal, valid and enforceable provision as similar in
terms to such illegal, invalid or unenforceable provision as may
be possible, and the parties hereto request the Court to whom
disputes relating to this Settlement Agreement are submitted to
reform the otherwise illegal, invalid or unenforceable provision
in accordance with this paragraph (N).
O. DUE AUTHORIZATION, ETC. Each party to this Settlement
Agreement hereby represents and warrants to each other party
hereto that this Settlement Agreement has been duly authorized,
executed and delivered by such party, and constitutes the legal,
valid and binding obligation of such party enforceable against
such party in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium,
liquidation and such other similar laws now or hereafter in
effect and by general principles of equity.
P. PARTIES BOUND; OBLIGATIONS. This Settlement Agreement
shall bind and inure to the benefit of the Parties hereto and
their respective heirs, beneficiaries, administrators, executors,
personal representatives, trustees, receivers, conservators,
successors and assigns. Each reference in this Settlement
Agreement to one or more parties shall be deemed to include such
parties and their respective heirs, beneficiaries,
administrators, executors, personal representatives, trustees,
receivers, conservators, successors and assigns. Although each
party hereto consents to the execution and performance of this
Settlement Agreement by the other parties hereto, no party hereto
shall, by its execution hereof, be deemed to bind itself or
himself to perform the obligations of any other party under this
Settlement Agreement (unless otherwise indicated by the context),
nor be deemed to recommend to any other party that this
Settlement Agreement should be entered into and performed by such
other party.
Q. NO ASSIGNMENT OF CLAIMS. All Parties hereto each
acknowledge, warrant and represent that they have not assigned,
conveyed, or otherwise transferred any claim or cause of action,
asserted or that could have been asserted, in the Lawsuit. The
Trust, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ hereby agree to indemnify and hold
harmless Pure World and ▇▇▇▇▇▇▇, singly and collectively from any
claims or causes of action released pursuant to this Settlement
Agreement asserted by any third-party on behalf of or through the
Trust, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇. Pure World and ▇▇▇▇▇▇▇ hereby agree
to indemnify and hold harmless the Trust and Trust Managers, from
any claims or causes of action released pursuant to this
Settlement Agreement asserted by any third-party on behalf of or
through Pure World or ▇▇▇▇▇▇▇.
R. NOTICES. All notices under this Settlement Agreement
shall be in writing and mailed by registered or certified mail,
return receipt requested, addressed as follows:
If to Pure World or ▇▇▇▇▇▇▇:
Pure World, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
with copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Cohan, Simpson, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to Strougo:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Wechsler ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Trust or Trust Managers:
American Industrial Properties REIT
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
S. EFFECTIVENESS AND TERMINATION. This Settlement
Agreement shall be of no force and effect unless it is executed
on or before November 27, 1996 by the following parties: AMERICAN
INDUSTRIAL PROPERTIES REIT, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, PURE WORLD, INC., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
This Settlement Agreement shall terminate if the sale
contemplated in Paragraph B.1. hereof and the payments
contemplated in paragraph C hereof have not been made by December
31, 1996, unless the Parties hereto agree in writing to extend
the termination date.
T. COUNTERPARTS. This Settlement Agreement may be
executed in several identical counterparts, and by the parties
hereto on separate counterparts and each counterpart when so
executed and delivered, shall constitute an original instrument,
and all such separate counterparts shall constitute but one and
the same instrument.
U. REPRESENTATION BY LEGAL COUNSEL. THE PURE WORLD
PARTIES, AND STROUGO ACKNOWLEDGE AND AGREE THAT THEY HAVE BEEN
REPRESENTED BY LEGAL COUNSEL DURING THE NEGOTIATION AND
PREPARATION OF THIS SETTLEMENT AGREEMENT AND WERE AFFORDED THE
OPPORTUNITY TO OBTAIN LEGAL COUNSEL TO REVIEW THIS SETTLEMENT
AGREEMENT. THE ATTORNEYS REPRESENTING THE PURE WORLD PARTIES
AND STROUGO WILL SIGN BELOW FOR THE PURPOSE OF ACKNOWLEDGING THAT
THE PURE WORLD PARTIES AND STROUGO WERE REPRESENTED BY LEGAL
COUNSEL. THE PURE WORLD PARTIES AND STROUGO ACKNOWLEDGE THAT THE
TRUST AND TRUST MANAGERS HAVE RELIED ON THE STATEMENTS CONTAINED
IN THIS PARAGRAPH 21 (U.) AND THAT THE TRUST AND THE TRUST
MANAGERS WOULD NOT EXECUTE THIS SETTLEMENT AGREEMENT UNLESS THE
PURE WORLD PARTIES AND STROUGO WERE REPRESENTED BY LEGAL COUNSEL
IN CONNECTION HEREWITH.
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Cohan, Simpson, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
REPRESENTING PURE WORLD, INC. AND ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Wechsler ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
REPRESENTING ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE TRUST AND THE TRUST MANAGERS ACKNOWLEDGE AND AGREE THAT THEY
HAVE BEEN REPRESENTED BY LEGAL COUNSEL DURING THE NEGOTIATION AND
PREPARATION OF THIS SETTLEMENT AGREEMENT AND WERE AFFORDED THE
OPPORTUNITY TO OBTAIN LEGAL COUNSEL TO REVIEW THIS SETTLEMENT
AGREEMENT. THE ATTORNEY REPRESENTING THE TRUST AND THE TRUST
MANAGERS WILL SIGN BELOW FOR THE PURPOSE OF ACKNOWLEDGING THAT
THE TRUST AND THE TRUST MANAGERS WERE REPRESENTED BY LEGAL
COUNSEL. THE TRUST AND THE TRUST MANAGERS ACKNOWLEDGE THAT PURE
WORLD, ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ HAVE RELIED ON THE STATEMENTS
CONTAINED IN THIS PARAGRAPH 21 (U.) AND THAT PURE WORLD, ▇▇▇▇▇▇▇
AND STROUGO WOULD NOT EXECUTE THIS SETTLEMENT AGREEMENT UNLESS
THE TRUST AND THE TRUST MANAGERS WERE REPRESENTED BY LEGAL
COUNSEL IN CONNECTION HEREWITH.
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
LIDDELL, SAPP, ZIVLEY, HILL and ▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
REPRESENTING AMERICAN INDUSTRIAL PROPERTIES REIT,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
IN WITNESS WHEREOF, the parties hereto have executed this
Settlement Agreement effective as of the 25th day of November,
1996, which date shall be the date of this Settlement Agreement
for all purposes.
AMERICAN INDUSTRIAL PROPERTIES REIT
By: /s/
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his
individual capacity
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his
individual capacity
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his individual
capacity
PURE WORLD, INC.
By: /s/
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇