Attached files
file | filename |
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8-K - FORM 8-K - QUIXOTE CORP | d70830e8vk.htm |
EX-10.1 - EX-10.1 - QUIXOTE CORP | d70830exv10w1.htm |
Exhibit 10.2
MEMORANDUM OF UNDERSTANDING
The Parties to the putative class action lawsuit currently pending in the Circuit Court of
Cook County, Illinois County Department Chancery Division (the Court), styled Ardito v. Reimer,
et al., Case No. 2010CH02544 (the Ardito Action), by and through their respective attorneys, have
reached an agreement in principle providing for the settlement of the Ardito Action (the
Settlement) on the terms and subject to the conditions set forth in this Memorandum of
Understanding (Memorandum):
WHEREAS, on December 30, 2009, Quixote Corporation (Quixote) and Trinity Industries, Inc.
and THP Merger Co. (collectively Trinity) announced a proposed tender offer and merger (the
Proposed Transaction) in which Trinity is making a tender offer to acquire all outstanding shares
of Quixote at a price of $6.38 per share in cash and a subsequent merger;
WHEREAS, on January 7, 2010, Quixote filed with the Securities and Exchange Commission (SEC)
a Form 14D-9 Recommendation Statement (the Recommendation Statement) soliciting
Quixotes shareholders to tender their shares in favor of the Proposed Transaction before the
Tender Offer will expire on February 4, 2010, and recommending that the Companys shareholders
tender their shares in the Tender Offer.
WHEREAS, on January 20, 2010, the Ardito Action was filed as putative class action on behalf
of Quixote stockholders challenging the Proposed Transaction and disclosures in the Recommendation
Statement and naming as defendants Quixote, Bruce Reimer, Leslie Jezuit, Daniel Gorey, Lawrence
McQuade, Clifford Nastas, Robert D. van Roijen, Jr., Duane M. Tyler, and Trinity (collectively
Defendants);
WHEREAS, on January 22, 2010, the Ardito Action filed a motion for a temporary restraining
order and expedited proceedings;
WHEREAS, on January 24, 2010, Defendants produced certain non-public materials in the Ardito
Action, including board minutes and bankers books pertaining to the Proposed Transaction;
WHEREAS, on January 25, 2010, the Ardito Action was transferred to Judge Sofia Hall before
whom an earlier similar filed action challenging the Proposed Transaction was pending, styled
Superior Partners v. Reimer, 10CH01613 (the SP Action);
WHEREAS, counsel for Defendants and Plaintiffs Counsel in the SP Action have engaged in
extensive arms-length negotiations and on January 26, 2010, agreed to settle the SP Action;
WHEREAS, counsel for Defendants and Plaintiffs Counsel in the Ardito Action have engaged in
extensive arms-length negotiations concerning a possible settlement of the Ardito Action, which
will be mooted in light of the settlement in the SP Action;
WHEREAS, the Parties have reached an agreement in principle to settle the Ardito Action
because Quixote will make certain additional or amended disclosures pursuant to the anticipated
settlement in the SP Action;
WHEREAS, Plaintiffs Counsel in the Ardito Action have determined that a settlement of the
Ardito Action on the terms reflected in this Memorandum is fair, reasonable, adequate, and in the
best interests of Quixotes stockholders;
WHEREAS, on January 27, 2010, Trinity had not been served and Plaintiff in the Ardito Action
filed a stipulation to dismiss without prejudice his claims against Trinity;
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WHEREAS, the Defendants, to avoid the costs, disruption, and distraction of further
litigation, and without admitting the validity of any allegations made in the Ardito Action, or any
liability with respect thereto, have concluded that it is desirable that the claims against them be
settled on the terms reflected in this Memorandum;
WHEREAS, the Quixote Defendants maintain that they have committed no disclosure violations or
any other breach of duty whatsoever in connection with the Proposed Transaction or the Schedule
14D-9;
WHEREAS, Plaintiffs entry into this Memorandum in the Ardito Action is not an admission as to
the lack of any merit of any of the claims asserted in the Ardito Action;
NOW, THEREFORE, as a result of the foregoing and the negotiations among counsel for the
Parties, the Parties have agreed as follows:
1. The Parties agree to negotiate and sign a Stipulation of Settlement (Settlement), if
necessary, reflecting the terms set forth in this Memorandum, including but not limited to a
release of all Defendants, Trinity Industries, Inc., and THP Merger Co.
2. Pursuant to the settlement of the SP Action, Quixote will provide amended and supplemental
disclosures, exclusively in an Amended Schedule 14D-9 to be filed on or before January 29, 2010 or
as reasonably practicable thereafter (the Supplemental Disclosures).
3. Defendants acknowledge that the Supplemental Disclosures moot Plaintiffs disclosure claims
giving rise, under Delaware law, to a petition for attorneys fees in the Ardito Action (the Fee
Claim), and as part of this Settlement Defendants agree to pay Plaintiffs Counsel in the Ardito
Action $169,000 and Plaintiff agrees to dismiss the Ardito Action with prejudice against all
Defendants.
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4. Defendants agree that Quixote (or any successor entity) will make payment of attorneys
fees and expenses in the Ardito Action within ten (10) calendar days after entry of the last order
of dismissal, with prejudice, in the Ardito Action, which will be filed by Ardito no earlier than
the date on which final settlement of the SP action is approved. Further, at the time the
attorneys fees are paid they shall be paid via wire transfer to an account controlled by LEVI &
KORSINSKY, LLP.
5. This Memorandum and Settlement shall be null and void and of no force and effect, unless
otherwise agreed to by the Parties pursuant to the terms hereof, if the settlement in the SP Action
does not obtain final court approval. In the event any Party withdraws from the Settlement
anticipated by this Memorandum, then this Memorandum shall not be deemed to prejudice in any way
the respective positions of the Parties with respect to the Ardito Action, and neither the
existence of this Memorandum, nor its contents, nor the negotiations leading to it, shall be
admissible in evidence or shall be referred to for any purpose in the Ardito Action or in any other
litigation or proceeding.
6. If any action is filed in any court asserting claims that are related to the subject matter
of the Ardito Action prior to dismissal of the Ardito Action, the Parties agree to take all
necessary action to prevent, stay, or seek dismissal of, or oppose entry of any interim or final
relief in favor of any member of the Class in any other litigation against any of the parties to
this Memorandum which challenges the Settlement, the Proposed Transaction, or otherwise involves a
Settled Claim.
7. This Memorandum shall be governed by and construed in accordance with the substantive laws
of the State of Delaware and the procedural laws of Illinois.
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8. This Memorandum may be modified or amended only by a writing, signed by all of the
signatories hereto, that refers specifically to this Memorandum.
9. The provisions contained in this Memorandum shall not be deemed a presumption, concession
or admission by any Defendant of any fault, liability or wrongdoing as to any facts or claims that
have been or might be alleged or asserted in the Ardito Action, or any other action or proceeding
that has been, will be, or could be brought, and shall not be interpreted, construed, deemed,
invoked, offered, or received in evidence or otherwise used by
any person in the Ardito Action, or in any other action or proceeding, whether civil, criminal
or administrative, for any purpose other than as provided for expressly herein.
10. This Memorandum shall be binding upon and inure to the benefit of the Parties and their
respective agents, executors, heirs, successors and assigns.
11. Notice of the proposed Settlement, if necessary, shall be provided by Quixote (or any
successor entity) at its expense.
12. This Memorandum may be executed in any number of actual or telecopied counterparts and by
each of the different Parties on several counterparts, each of which when so executed and delivered
will be an original. The executed signature page(s) from each actual or telecopied counterpart may
be joined together and attached and will constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Memorandum effective as of the date set
forth below.
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DATED: January 28, 2010 | LEVI & KORSINSKY, LLP |
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/s/ Juan E. Monteverde | ||||
Juan E. Monteverde | ||||
30 Broad Street -15th Floor New York, NY 10006 Attorneys for Plaintiffs |
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DATED: January 28, 2010 | KATTEN MUCHIN ROSENMAN LLP |
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/s/ Pamela Smith | ||||
David H. Kistenbroker | ||||
Pamela Smith 525 West Monroe Street Chicago, IL 60661-3693 |
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Attorneys for Defendants Quixote Corporation and Individual Defendants | ||||
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