Attached files
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8-K - FORM 8-K - EMERSON RADIO CORP | d662305d8k.htm |
Exhibit 99.1
SETTLEMENT AGREEMENT
This Settlement Agreement (the Settlement Agreement), dated as of December 19th, 2013 (the Effective Date), is made by and between Fred Kayne, Stephen Kayne, Milton T. Okun, Rosemary Okun, Don Wohl, Glen Tobias, Ken Berg, Robert A. Bronstein, the Bronstein Family Trust, Bruce Burnam, Kathleen A. Cohen, William Corbett, the Cutler Family Trust of 1989, Martin Goldfarb, M.D., Richard Gunther, James Harpel, Richard L. Milsner, Joel Rumm, D.V.M., Victor Scaravilli, Tri S Partners, Dreiländer Beteiligung Objekt DLF 93/14- KC-Beiteiligungs GmbH-KG, a limited partnership formed under the laws of Germany and Zwölfte Dreiländer Beteiligung DLF 92/12-KC-Beiteiligungs GmbH-KG, a limited partnership formed under the laws of Germany, on the one hand, (Plaintiffs) and Emerson Radio Corp. (Emerson), on the other hand, (Plaintiffs and Emerson shall collectively be referred to herein as the Parties).
RECITALS
WHEREAS, on or about August 14, 2009, Plaintiffs filed an action in the Superior Court of the State of California against certain defendants (not including Emerson), entitled Kayne, et al. v. Ho, et al., Docket No. BC 419802; (the Action);
WHEREAS, on or about September 18, 2009, defendant The Grande Holdings Limited filed a Notice of Removal of Action Under 28 U.S.C. Section 1441 and the Action was removed to the United States District Court for the Central District of California and assigned docket number CV09-06816;
WHEREAS, on or about July 1, 2011, Plaintiffs filed an Amended Complaint in the Action that named Emerson as an additional defendant;
WHEREAS, on or about March 30, 2012 Plaintiffs filed a Second Amended Complaint;
WHEREAS, on or about September 17, 2012, Plaintiffs filed a Third Amended Complaint;
WHEREAS, over the course of the Action, the Court, upon motion, dismissed two of Plaintiffs three claims against Emerson;
WHEREAS, on or about May 23, 2013, Emerson filed an Answer in which it (i) denied the material allegations asserted by Plaintiffs, and (ii) interposed affirmative defenses;
WHEREAS, on December 3, 2013, the trial in the Action commenced before the Honorable John A. Kronstadt;
WHEREAS, the Parties wish to resolve the Action and all claims asserted therein without acknowledging or attributing fault or liability on the part of either party;
WHEREAS, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:
TERMS
1. Payment. Within five (5) business days after the Effective Date, Emerson shall pay four million dollars ($4,000,000.00) to Plaintiffs attorneys client trust account in consideration of the settlement of all claims asserted (the Payment). Emerson shall make the Payment by wire transfer in accordance with the wire instructions set forth in Exhibit A.
2. Good Faith Settlement. The Payment shall remain in Plaintiffs attorneys client trust account until such time as (i) Emerson makes an application to the Court to approve this Settlement Agreement as a good faith settlement under California law and such application is granted by the Court, or (ii) Emerson provides Plaintiffs attorneys notice in writing that it waives the right to make such an application. Emerson will make any such application to the Court by no later than January 13, 2014. In the event that (i) Emerson makes an application to
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the Court as set forth in this Paragraph and the Court approves this Settlement Agreement as a good faith settlement, or (ii) Emerson waives its right in writing to make such an application as set forth in this Paragraph, then the Payment may be disbursed to Plaintiffs from their attorneys client trust account. In the event that Emerson makes an application to the Court as set forth in this Paragraph, and the Court does not approve this Settlement Agreement as a good faith settlement, then Plaintiffs shall immediately, upon Emersons demand, return the Payment to Emerson and this Settlement Agreement and all of its provisions shall be null and void and Plaintiffs shall have the right to resume the trial of the Action.
3. No Admission of Wrongdoing. The Parties hereto are entering into this Settlement Agreement for reasons of economy and finality, and neither the terms nor the fact of the Settlement Agreement may be construed as an admission by any party as to the merits of any of the claims or defenses resolved herein.
4. Mutual Release. Upon Plaintiffs receipt of Emersons Payment as set forth in Paragraphs 1 and 2, and upon either the Courts approval of the Settlement Agreement as a good faith settlement or Emersons waiver in writing of its right to make such application or its failure to make such an application by January 13, 2014: (a) Plaintiffs, individually and collectively and each of their parents, subsidiaries, affiliated companies, agents, servants, employees, attorneys, representatives, heirs, successors, assigns, devisees, partners (limited, general, or other), trustees, beneficiaries, officers and directors release and discharge Emerson, and each of its current and former parents, subsidiaries, affiliated companies, agents, servants, employees, attorneys, directors and officers (but not The Grande Holdings Limited, the Provisional Liquidators or Liquidators of The Grande Holdings Limited, or any defendant in the Action, other than Emerson, except to the extent such Provisional Liquidator(s) or Liquidator(s) are acting in their
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capacity as officers and/or directors of Emerson), from all claims and demands whatsoever that Plaintiffs ever had against Emerson from the beginning of time up to me Effective Date including, but not limited to, claims and demands relating to the events giving rise to the Action. This release shall not apply to any obligation created by this Settlement Agreement, and (b) Emerson, and each of its subsidiaries, affiliated companies, agents, servants, employees, attorneys, representatives, heirs, successors, assigns, devisees, partners (limited, general, or other), trustees, beneficiaries, officers and directors (but not The Grande Holdings Limited, the Provisional Liquidators or Liquidators of The Grande Holdings Limited, or any defendant in the Action other than Emerson, except to the extent such Provisional Liquidator(s) or Liquidator(s) are acting in their capacity as officers and/or directors of Emerson), release and discharge Plaintiffs, individually and collectively, and each of their parents, subsidiaries, affiliated companies, agents, servants, employees, attorneys, representatives, heirs, successors, assigns, devisees, partners (limited, general, or other), trustees, beneficiaries, officers and directors from all claims and demands whatsoever that Emerson ever had against Plaintiffs from the beginning of time, up to the Effective Date, including, but not limited to, claims and demands relating to the events giving rise to the Action. This release shall not apply to any obligation created by this Settlement Agreement.
5. Waiver of Section 1542. Plaintiffs and Emerson acknowledge California Civil Code Section 1542 which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
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(a) Subject to the provisions of this Settlement Agreement, Plaintiffs waive and release any rights they may have under Section 1542 to the full extent that all such rights may lawfully be waived. Plaintiffs acknowledge that without this waiver Emerson would not have entered into this Settlement Agreement; and (b) subject to the provisions of this Settlement Agreement. Emerson waives and releases any rights it may have under Section 1542 to the full extent that all such rights may be lawfully waived. Emerson acknowledges that without this waiver Plaintiffs would not have entered into this Settlement Agreement.
6. Merger. This Settlement Agreement is the entire agreement between the parties regarding its subject matter. This Settlement Agreement supersedes all prior negotiations among the Parties regarding its subject matter. No oral agreement, statement, promise, commitment, or representation will alter or terminate the terms of this Settlement Agreement. This Settlement Agreement cannot be changed or modified except by written agreement signed by the parties. No breach of any covenant, agreement, warranty, or representation will be deemed waived unless expressly waived in writing and signed by the party who might assert such a breach.
7. Joint Preparation. The language of all parts of this Settlement Agreement in all cases will be construed as a whole, extending to it its fair meaning, and not strictly for or against either of the parties. The Parties agree that, in consultation with their attorneys, they have jointly prepared and approved the terms of this Settlement Agreement and that if any dispute arises concerning the interpretation of any term, no Party is deemed the drafter nor can any such language be presumptively construed in favor of or against either Party. Nothing contained in this Settlement Agreement is an admission by either Party against their respective positions taken in the Action, and none of the foregoing should be construed as an admission of liability or a waiver by either Party of any rights or remedies other than as expressly provided in this Settlement Agreement.
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8. Binding Effect. This Settlement Agreement is binding upon and inures to the benefit of the Parties as well as their successors and assigns. The provisions of this Settlement Agreement are severable and if any part of this Settlement Agreement is found to be illegal or in violation of public policy, or for any reason unenforceable at law, the other provisions of this Settlement Agreement remain fully valid and enforceable.
9. Governing Law/Jurisdiction. This Settlement Agreement, and the validity, performance and enforcement hereof, shall be interpreted and construed in accordance with the laws of the State of California, without giving effect to the conflict of laws provisions thereof. In the event that there is any suit, action or proceeding involving this Settlement Agreement, the Parties agree to submit to the jurisdiction of the United States District Court for the Central District of California; that the Honorable John Kronstadt will retain jurisdiction over the Parties for purposes of deciding any such suit, action or proceeding; and that any order, process, notice of motion or other application to or by such court or judge may be served upon the opposing Party or Parties within or without such courts jurisdiction by overnight delivery or by hand, with copies thereof sent by email, by service upon the counsel for the respective parties as listed in Paragraph 13, Notices.
10. Warranties, Representations and Acknowledgments. Each signatory hereto hereby covenants, warrants and represents as follows:
(i) | Such person has the full authority and has been duly authorized to bind the Party or Parties for whom such person acts, and that his/her signature hereon and agreement hereto constitutes, evidences and creates a binding obligation of the party on whose behalf said signatory has executed this Settlement Agreement; |
(ii) | Execution, delivery and performance of this Settlment Agreement has been duly and properly authorized by all necessary internal action of each of the Parties hereto; |
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(iii) | Upon execution, this Settlement Agreement will constitute the binding obligation of the parties hereto; and |
(iv) | The claims, suits, rights, and/or interests which are the subject matter of this Settlement Agreement and the Action are owned or controlled by the party asserting same, and have not been assigned, transferred or sold, and are free of encumbrance. |
11. Headings. The headings preceding the paragraphs and subparagraphs herein are for convenience of reference only, and shall not be deemed a part of this Settlement Agreement.
12. Representation by Counsel. Each signatory to this Settlement Agreement has executed it freely after having consulted with, or having had the opportunity to consult with, the attorneys of such persons choice.
13. Notices. All notices or other communications to be sent to the Parties shall be addressed and sent by (i) certified mail, return receipt requested, postage prepaid, (ii) overnight courier, (iii) facsimile transmission or email and first class mail, or (iv) by hand, to the parties counsel at the following addresses, unless the other parties hereto are notified, in writing, of a different address:
On Behalf of Plaintiffs
NAGLER & ASSOCIATES
2300 S. Sepulveda Blvd.
Los Angeles, California 90064
Attn: Larry Nagler
On Behalf of Emerson
SORINRAND LLP
515 Madison Avenue
New York, New York 10022
Attn: Joshua H. Epstein
14. Dismissal of Action. Upon (i) full execution of this Settlement Agreement (ii) Plaintiffs receipt of the Payment set forth in Paragraph I, and (iii) the Courts approval of this Settlement Agreement as a good faith settlement under California law as set forth in Paragraph 2, or Emersons written waiver of the right to make same, or its failure to apply for a good faith settlement order by January 13, 2014, the Parties will sign, and Plaintiffs will file a stipulation of dismissal with prejudice, in the form attached as Exhibit B.
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15. Execution. This Settlement Agreement may be executed in identical counterparts, which, when delivered by electronic means, facsimile, or original, constitutes one and the same instrument, and is enforceable as if all parties had executed a single document.
EMERSON RADIO CORP. | ||||||
Dated: December 19th, 2013 |
By: | /s/ Duncan Hon | ||||
Name: | Duncan Hon | |||||
Title: | CEO | |||||
Dated: December 19, 2013 |
/s/ Fred Kayne by Fred Kayne, Authorized Representative | |||||
Fred Kayne | ||||||
Dated: December 19, 2013 |
/s/ Ken Berg by Fred Kayne, Authorized Representative | |||||
Ken Berg | ||||||
Dated: December 19, 2013 |
/s/ Robert A. Bronstein by Fred Kayne, Authorized Representative | |||||
Robert A. Bronstein | ||||||
Dated: December 19, 2013 |
/s/ Bronstein Family Trust by Fred Kayne, Authorized Representative | |||||
Bronstein Family Trust | ||||||
By: | /s/ Fred kayne | |||||
(Print name) | ||||||
Dated: December 19, 2013 |
/s/ Bruce Burnam by Fred Kayne, Authorized Representative | |||||
Bruce Burnam |
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Dated: December 19, 2013 | /s/ Kathleen A. Cohen by Fred Kayne, Authorized Representative | |||||
Kathleen A. Cohen | ||||||
Dated: December 19, 2013 | /s/ William Corbett by Fred Kayne, Authorized Representative | |||||
William Corbett | ||||||
Dated: December 19, 2013 | /s/ Cutler Family Trust of 1989 by Fred Kayne, Authorized Representative | |||||
Cutler Family Trust of 1989 | ||||||
By: | /s/ Cutler Family Trust | |||||
(Print name) | ||||||
Dated: December 19, 2013 | /s/ Dreilander Beteiligung Objekt by Fred Kayne, Authorized Representative | |||||
Dreilander Beteiligung Objekt DLF 93/14-KC-Beteiligungs GmbH-KG | ||||||
By: | /s/ Fred Kayne | |||||
(Print name) | ||||||
Dated: December 19, 2013 | /s/ Martin Goldfarb by Fred Kayne, Authorized Representative | |||||
Martin Goldfarb | ||||||
Dated: December 19, 2013 | /s/ Richard Gunther by Fred Kayne, Authorized Representative | |||||
Richard Gunther | ||||||
Dated: December 19, 2013 | /s/ James Harpel by Fred Kayne, Authorized Representative | |||||
James Harpel | ||||||
Dated: December 19, 2013 | /s/ Stephen Kayne by Fred Kayne, Authorized Representative | |||||
Stephen Kayne | ||||||
Dated: December 19, 2013 | /s/ Richard L. Milsner by Fred Kayne, Authorized Representative | |||||
Richard L. Milsner | ||||||
Dated: December 19, 2013 | /s/ Milton T Okun by Fred Kayne, Authorized Representative | |||||
Milton T Okun | ||||||
Dated: December 19, 2013 | /s/ Rosemary Okun by Fred Kayne, Authorized Representative | |||||
Rosemary Okun | ||||||
Dated: December 19, 2013 | /s/ Joel Rumm by Fred Kayne, Authorized Representative | |||||
Joel Rumm |
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Dated: December 19, 2013 | /s/ Victor Scaravilli by Fred Kayne, Authorized Representative | |||
Victor Scaravilli | ||||
Dated: December 19, 2013 | /s/ Glen Tobias by Fred Kayne, Authorized Representative | |||
Glen Tobias | ||||
/s/ Tri S Partners by Fred Kayne, Authorized Representative | ||||
Dated: December 19, 2013 | Tri S Partners | |||
By: | /s/ Fred Kayne | |||
(Print name) | ||||
Dated: December 19, 2013 | /s/ Don Wohl by Fred Kayne, Authorized Representative | |||
Don Wohl | ||||
Dated: December 19, 2013 | /s/ Zwolfte Dreilander Beteiligung by Fred Kayne, Authorized Representative | |||
Zwolfte Dreilander Beteiligung DLF 92/12-KC-Beteiligungs GmbH-KG | ||||
By: | /s/ Fred Kayne | |||
(Print name) |
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Exhibit A
Wire Transfer Instructions
Name of the Bank: | JP Morgan Chase | |
Address of the Bank: | 10701 W. Pico Blvd., Los Angeles, CA 90064 | |
Telephone Number: | (310) 475-9402 or (800) 788-7000 | |
Name of the Account: | Nagler & Associates Attorney - Client Trust Account | |
Routing Number: | 322271627 | |
SWIFT Code: | CHASUS33 | |
Account Number: | 4422189765 |
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Exhibit B
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA | ||||||
KAYNE et al., | No. 12 CV 3031 (VM)(FM) | |||||
Plaintiffs, | ||||||
-against- | ||||||
HO et al., | ||||||
Defendants. |
STIPULATION OF DISMISSAL WITH PREJUDICE
Pursuant to Fed. R. Civ. P. 41 (a)(1)(A)(ii), plaintiffs and defendant, Emerson Radio Corp., by and through their undersigned counsel, stipulate that the above-captioned action is voluntarily dismissed with prejudice and without costs to either party.
NAGLER & ASSOCIATES | SORINRAND LLP | |||||||
By: |
|
By: |
| |||||
Larry Nagler | Joshua H. Epstein | |||||||
2300 S. Sepulveda Blvd. | 515 Madison Avenue, 13th Floor | |||||||
Los Angeles, California 90064 | New York, New York 10022 | |||||||
(212)600-2085 | ||||||||
Attorneys for Plaintiffs | Attorneys for Defendant | |||||||
Emerson Radio Corp. | ||||||||
Dated: | Dated: |
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