<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM 8-K
-----------------
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 16, 1997
---------------
DART GROUP CORPORATION
------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S><C>
Delaware 0-1946 53-0242973
- ----------------------------- --------------- -----------------
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
3300 75th Avenue, Landover, Maryland 20785
------------------------------------ -------
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code (301) 731-1200
-----------------------------------------------------------------
(Former name or former address, if changed since last report).
The exhibit index appears on page 4.
- 1 -
<PAGE> 2
Item 1. Changes in Control of Registrant
The discussion under Item 5 of this Current Report on Form 8-K is
incorporated herein by reference.
Item 5. Other Events
On August 16, 1997, Dart Group Corporation ("Dart") announced a
Settlement Agreement (the "Settlement Agreement") with Robert, Gloria and Linda
Haft. The Settlement Agreement, which has been approved by the Executive
Committee of Dart's Board of Directors, is subject to approval by Dart's Board
of Directors, and certain other approvals, by September 2, 1997. A press
release announcing the Settlement Agreement is incorporated by reference and
attached hereto as Exhibit 99.1. The Settlement Agreement is incorporated by
reference and attached hereto as Exhibit 99.2.
- 2 -
<PAGE> 3
Item 7. Financial Statements and Exhibits
Exhibit 99.1 Press Release, dated August 16, 1997, of Dart
Group Corporation
Exhibit 99.2 Settlement Agreement, dated as of August 18,
1997, by and among Dart Group Corporation,
Crown Books Corporation, Trak Auto
Corporation, Dart/SFW Corp., SFW Holding
Corp. and Shoppers Food Warehouse Corp. and
Robert M. Haft, Gloria G. Haft and Linda G.
Haft, subject to Article 11 thereof.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DART GROUP CORPORATION
By: MARK A. FLINT
--------------------------
Mark A. Flint
Senior Vice President and
Chief Financial Officer
Date: August 19, 1997
- 3 -
<PAGE> 4
DART GROUP CORPORATION
Form 8-K
Exhibit Index
Exhibit 99.1 Press Release, dated August 16, 1997, of Dart
Group Corporation
Exhibit 99.2 Settlement Agreement, dated as of August 18,
1997, by and among Dart Group Corporation,
Crown Books Corporation, Trak Auto
Corporation, Dart/SFW Corp., SFW Holding
Corp. and Shoppers Food Warehouse Corp. and
Robert M. Haft, Gloria G. Haft and Linda G.
Haft, subject to Article 11 thereof.
- 4 -
<PAGE> 1
EXHIBIT 99.1
FOR IMMEDIATE RELEASE
DART GROUP ANNOUNCES SETTLEMENT WITH
ROBERT, GLORIA AND LINDA HAFT
Landover, MD... August 16, 1997 ... Dart Group Corporation (NASDAQ:
DARTA) today announced a Settlement Agreement with Robert, Gloria and Linda
Haft. The Settlement Agreement, which has been approved by the Executive
Committee of Dart's Board of Directors, is subject to approval by Dart's Board
of Directors, and certain other approvals, by September 2, 1997.
Dart Group Corporation also announced that it is continuing its
settlement negotiations with Herbert Haft and anticipates executing a
comprehensive settlement agreement with him by September 2, 1997.
Settlement with Robert, Gloria and Linda Haft
The transactions contemplated by the Settlement Agreement between Dart
and Robert, Gloria and Linda Haft include: the purchase by Dart from Robert,
Gloria and Linda Haft (or related parties) of 104,976 shares of Dart Class B
Common Stock and 81,556 shares of Dart Class A Common Stock; the termination of
options held or claimed by Robert, Gloria and Linda Haft to purchase a total of
283,750 shares of Dart Class A Common Stock; the termination of putative
options to purchase 15 shares of Dart/SFW Corp.; and the termination of a small
number of options to purchase shares of common stock of Trak Auto Corporation
and Crown Books Corporation. Dart will pay Robert, Gloria and Linda Haft a
total of approximately $41 million in connection with these transactions.
The Settlement Agreement also contemplates the completion of
bankruptcy plans of reorganization for the partnerships owning Dart's
headquarters building in Landover, Maryland and a warehouse leased by Dart's
subsidiary, Trak Auto Corporation, in Bridgeview, Illinois. Under these
bankruptcy plans, the Company will pay a total of $4.4 million (50% of which
would be offset by the release to Dart of funds previously escrowed for Ronald
Haft) to Robert and Linda Haft for their interests in these two partnerships,
and a total of $7.0 million to reduce outstanding institutional mortgage loans
on these properties, which will thereafter be wholly-owned by Dart affiliates.
This settlement requires a supplemental settlement arrangement between
Dart and Ronald Haft, which has not yet been completed. The effectiveness of
this settlement would be conditioned upon the satisfaction of several
requirements,
- 1 -
<PAGE> 2
including compliance with a 7-day notice requirement under a Standstill Order
of the Delaware Court of Chancery applicable to Dart. The effectiveness of
this settlement also would be subject to approval by Richard B. Stone in his
capacity as Voting Trustee.
The closing of these transactions is scheduled for late September,
subject to the satisfaction of various conditions. Closing of these
transactions cannot be assured.
This settlement, if consummated, would result in the termination of
the pending claim by Robert, Gloria and Linda Haft to control of Dart and the
settlement of all litigation between them and Dart and its subsidiaries.
Dart anticipates that $50 million of proceeds from a recent private
placement of senior notes by its subsidiary, Shoppers Food Warehouse Corp.,
will be used to fund these transactions. A portion of the cost of these
transactions may be allocated to Trak Auto Corporation and, possibly, Crown
Books Corporation, which are subsidiaries of Dart. No such allocations have
yet been determined.
Anticipated Settlement with Herbert Haft
The resolutions of Dart's Executive Committee authorizing the
settlement with Robert, Gloria and Linda Haft also contemplate that a
settlement agreement will be finalized with Herbert Haft, and that a related
supplemental settlement agreement will be entered into with Ronald Haft, by
September 2, 1997.
As previously announced, Dart reached a conditional settlement
agreement in principle with Herbert Haft on April 21, 1997. Although that
conditional agreement in principle terminated on July 11, 1997, without the
parties entering into a definitive settlement agreement, negotiations have
continued intermittently toward a definitive settlement agreement substantially
consistent with the proposed terms outlined in the April 21 conditional
agreement in principle.
Under the settlement being discussed with Herbert Haft, he would
retire from his positions as Chairman of Dart and its three major operating
subsidiaries: Shoppers Food Warehouse Corp., Trak Auto Corporation and Crown
Books Corporation. Herbert Haft also would relinquish his claim to voting
control of Dart.
Further, under the contemplated settlement, Herbert Haft would sell to
the Company all 122,747 of his shares of Dart Class A Common Stock and options
to purchase a total of approximately 129,750 shares of Dart Class A Common
Stock, and substantially lesser holdings in Trak Auto and Crown Books. The
settlement
- 2 -
<PAGE> 3
also would terminate Herbert Haft's employment agreement with Dart and would
resolve all outstanding litigation and disputes between Dart and Herbert Haft.
Mr. Haft would also assign certain real estate interests to the Company.
Herbert Haft would receive $29.7 million from Dart if the settlement
is implemented, at least part of which is expected to be deferred beyond
closing. Herbert Haft would also receive an additional $11.6 million from
escrowed funds previously paid by Dart to Ronald Haft as part of its October
1995 settlement with Ronald Haft (and $700,000 interest on those funds). Dart
would make a $10 million loan to a partnership owned by Herbert and Ronald
Haft, which loan would be personally guaranteed by Ronald Haft and would be
secured by such partnership's interests in three shopping centers located in
suburban Washington, D.C. and by a one-half indirect interest in an office
building in Lanham, Maryland leased by Shoppers Food Warehouse Corp.
If a settlement agreement is entered into with Herbert Haft, closing
of the settlement transactions would be subject to final and non- appealable
action by the Delaware Court of Chancery or the Delaware Supreme Court
approving all of the terms of the settlement, terminating certain putative
derivative actions pending with respect to Dart in the Delaware Court of
Chancery, and approving the October 1995 settlement between Dart and Ronald
Haft and the supplemental settlement between Dart and Ronald Haft. The closing
of the anticipated settlement between Dart and Herbert Haft, even if a
settlement agreement is reached by September 2, 1997, would not be expected to
occur until three or more months later.
There can be no assurance that a settlement agreement between Dart and
Herbert Haft will be entered into or that the contemplated settlement
transactions between Dart and Herbert Haft will close.
In its negotiation with members of the Haft family, Dart is
represented by the Executive Committee of its Board of Directors, comprised of
Larry G. Schafran, Chairman, Douglas M. Bregman, Esq. and Bonita A. Wilson.
For further information, contact Larry G. Schafran (301-731-1502).
Business Contact: Larry G. Schafran
Chairman, Dart Group Executive Committee
301-226-1502
Media Contact: Marina Ein
202-223-2922
- 3 -
<PAGE> 1
EXHIBIT 99.2
SETTLEMENT AGREEMENT
by and among
DART GROUP CORPORATION
CROWN BOOKS CORPORATION
TRAK AUTO CORPORATION
DART/SFW CORP.
SFW HOLDING CORP.
SHOPPERS FOOD WAREHOUSE CORP.,
SUBJECT TO ARTICLE 11 HEREOF,
and
ROBERT M. HAFT
GLORIA G. HAFT
LINDA G. HAFT
Dated as of August 18, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1. DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2. SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.1 Settlement Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.2 Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3 Closing; Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 3. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1 Conditions to Obligations of the Dart Companies . . . . . . . . . . . . . . . . . . 21
3.2 Conditions to Obligations of RMH, GGH and LGH . . . . . . . . . . . . . . . . . . . 23
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF DART COMPANIES . . . . . . . . . . . . . . . . . . 26
4.1 Organization and Authority; Enforceability . . . . . . . . . . . . . . . . . . . . . 26
4.2 Absence of Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.3 No Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.5 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.6 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.7 No Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.8 Brokerage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF RMH . . . . . . . . . . . . . . . . . . . . . . . . 28
5.1 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.2 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.3 Absence of Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.4 No Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.5 Shares; Options; Dart/SFW Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.6 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.7 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.8 Existing RMH Costs Against Dart, et al. . . . . . . . . . . . . . . . . . . . . . . 31
5.9 No Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.10 Brokerage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF GGH . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.2 Absence of Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.3 No Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.4 Shares; Options; Dart/SFW Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.5 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
6.7 Existing GGH Costs Against Dart, et al. . . . . . . . . . . . . . . . . . . . . . . 33
6.8 No Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.9 Brokerage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF LGH . . . . . . . . . . . . . . . . . . . . . . . . 34
7.1 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.2 Absence of Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.3 No Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.4 Shares; Options; Dart/SFW Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.5 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.7 Existing LGH Costs Against Dart, et al. . . . . . . . . . . . . . . . . . . . . . . 36
7.8 No Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.9 Brokerage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 8. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.1 RMH, GGH and LGH Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.2 Dart Company Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 9. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.1 Indemnification by Dart Companies . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.2 Indemnification Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.3 Indemnification Escrow Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.4 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.2 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.3 Dart Remedies for Other Dart Company Rights Representations . . . . . . . . . . . . 46
10.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.5 No Right of Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.7 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.8 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 49
10.9 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.12 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.13 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.14 Non-Waiver of Remedies and Actions . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.15 Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.16 Submission to Jurisdiction; Service of Process . . . . . . . . . . . . . . . . . . . 50
10.17 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.18 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 11. EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.1 Limited Initial Effectiveness of Agreement. . . . . . . . . . . . . . . . . . . . . 51
11.2 RMH, GGH and LGH Bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
</TABLE>
<PAGE> 5
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Agreement"), dated as of August 18, 1997, is
made by and among Dart Group Corporation, a Delaware corporation ("Dart"),
Crown Books Corporation, a Delaware corporation ("Crown Books"), Trak Auto
Corporation, a Delaware corporation ("Trak Auto"), Dart/SFW Corp., a Delaware
corporation ("Dart/SFW"), SFW Holding Corp., a Delaware corporation ("SFW
Holding"), and Shoppers Food Warehouse Corp., a Delaware corporation ("SFW";
Dart, Crown Books, Trak Auto, Dart/SFW, SFW Holding and SFW are hereinafter
sometimes referred to collectively as the "Dart Companies"), and Robert M. Haft
("RMH"), Gloria G. Haft ("GGH") and Linda G. Haft ("LGH").
WITNESSETH:
WHEREAS, in September 1994 the Board of Directors of Dart unanimously
adopted a resolution recognizing that Dart had been "confronted by significant
developments relating to [its] ownership and management" and creating an
Executive Committee (the "Executive Committee") of the Board of Directors with
the power to "conduct the affairs of [Dart] with respect to matters that are
the subject of dispute between [Herbert H. Haft] and [Ronald S. Haft]";
WHEREAS, subsequent resolutions of Dart's Board of Directors authorized
the Executive Committee to direct Dart's litigation of certain claims involving
RMH, GGH and LGH;
WHEREAS, an action captioned Robert M. Haft v. Dart Group Corporation,
Civ. A. No. 95-82 (D. Del. filed Feb. 10, 1995) was filed by RMH to enforce
certain stock options (the "Options Lawsuit") and Dart has filed a counterclaim
in the Options Lawsuit action against RMH to cancel certain stock options held
by RMH;
WHEREAS, on November 23, 1993 RMH filed a shareholder derivative lawsuit
captioned Robert M. Haft v. Ronald S. Haft, et al., Civ. A. No. 13268 (Del.
Ch.) challenging the validity of an employment contract between Dart and Ronald
S. Haft ("RSH") and the grant to RSH of certain options to purchase shares of
the Class B Common Stock of Dart (the "RMH Derivative Lawsuit") and, in January
1994 the Board of Directors of Dart created a Special Litigation Committee (the
"Special Litigation Committee") to "have and exercise the full powers of the
Board of Directors to review and determine whether or not the Corporation shall
undertake to institute legal action for, or to maintain the prosecution of, the
claims asserted" in, among other matters, the RMH Derivative Lawsuit;
<PAGE> 6
WHEREAS, in February 1995 Dart filed a lawsuit captioned Dart Group
Corporation and Pennsy Warehouse Leasing Corporation v. Herbert H. Haft, et
al., Civ. A. No. CAL 95-02302 (Cir. Ct. of Prince George's County) challenging
the validity of leases between Dart and certain Haft family partnerships for
three warehouses located in Landover, Maryland and seeking rescission of such
leases and damages from RMH, GGH and other members of the Haft family for
misrepresentations, misleading omissions and breaches of fiduciary duties (the
"Pennsy Lawsuit");
WHEREAS, on October 6, 1995 Dart and RSH entered into that certain
Settlement Agreement pursuant to which Dart and RSH agreed to settle the
lawsuit captioned Alan R. Kahn and The Tudor Trust v. Herbert Haft, Civ. A. No.
13154 (Del. Ch. filed Sept. 29, 1993) and the lawsuit captioned Ronald S. Haft
v. Dart Group Corporation, Civ. A. No. 13736 (Del. Ch.), and various other
claims between RSH and Dart (the "RSH Settlement");
WHEREAS, on October 18, 1995 RMH, GGH and LGH filed a lawsuit captioned
Gloria Haft, et al. v. Larry Schafran, et al., Civ. A. No. 14620 (Del. Ch.),
challenging the legal effect of the Voting Trust created through the RSH
Settlement, contending that the RSH Settlement placed majority voting control
of Dart in the hands of RMH, GGH and LGH and seeking a judicial declaration
that directors selected by RMH, GGH and LGH are the properly empowered
directors of Dart (the "Section 225 Lawsuit");
WHEREAS, in November 1995 Herbert H. Haft ("HHH") filed a lawsuit
captioned Herbert H. Haft v. Dart Group Corporation, et al., Civ. A. No. 14685
(Del. Ch.), seeking to overturn the transactions contemplated by the RSH
Settlement (the "HHH Settlement Lawsuit");
WHEREAS, on July 18, 1996, RMH filed a motion for attorneys' fees in the
lawsuit captioned Robert M. Haft v. Dart Group Corporation, et al., Civ. A. No.
93-384 (Del. Ch.) seeking an order against Dart and Crown Books awarding him
attorneys' fees and expenses (the "Attorneys' Fees Claim");
WHEREAS, RMH claims that Dart and Crown Books have made false and
defamatory statements about him and his performance while he was an officer and
director of such companies and have engaged in other libelous and slanderous
conduct and, as a result thereof, RMH claims that he has been injured in his
profession, reputation and good standing in the community in which he lives, to
his damage;
WHEREAS, RMH and LGH claim that the transfer to Dart of interests in
property held by the Seventy-Fifth Avenue Limited Partnership and the Trak
Chicago Limited Partnership (in which partnerships RMH and LGH assert they have
retained economic rights) contemplated by the RSH Settlement is forbidden by
contracts entered into by RMH, LGH and RSH and would cause RMH and LGH to incur
tax liabilities of approximately $4.4 million;
WHEREAS, the parties to this Agreement desire that (1) all existing and
potential claims between the Dart Companies and RMH, LGH, or GGH be settled and
discharged, (2)
2
<PAGE> 7
all of the interests of RMH, LGH, and GGH in stock or stock options of the Dart
Companies be purchased by Dart, and (3) the interests of RMH and LGH in certain
real estate properties and partnerships be purchased by Dart;
WHEREAS, the Executive Committee, the Special Litigation Committee and
the Board of Directors of Dart have authorized and approved this Agreement as
being in the best interests of Dart;
WHEREAS, RMH, GGH and LGH believe that the value of their shares,
partnership interests, options and other rights being transferred to the Dart
Companies hereunder or being terminated pursuant hereto exceeds the payments
from the Dart Companies to be made hereunder in consideration therefor;
WHEREAS, Wasserstein Perella & Co., financial advisers to Dart, have
provided to Dart a draft fairness opinion as to the transactions contemplated
by this Agreement in the form that Wasserstein Perella & Co. indicated, on July
13, 1997, they were willing to deliver in connection with the transactions
contemplated herein (the "Fairness Opinion");
WHEREAS, in connection with the Section 225 Lawsuit and the HHH
Settlement Lawsuit, the Delaware Court of Chancery entered an order (the
"Standstill Order") on December 6, 1995 that requires Dart to refrain from
taking or recognizing specified actions and that, in Section 8 of the
Standstill Order, requires Dart to give not less than seven (7) days' notice of
certain "extraordinary transactions" to the other parties to such lawsuits;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, certain transferees of components of the RMH Interests, the GGH
Interests and the LGH Interests are executing and delivering to Dart agreements
under which they are to consummate certain transactions at the time of the
Closing pursuant to this Agreement (collectively, the "Transfer Agreements");
WHEREAS, the parties acknowledge that this Agreement, and the obligations
of the Dart Companies to consummate the transactions contemplated hereby, are
subject to compliance with Section 8 of the Standstill Order, the parties
contemplate that the notice required by Section 8 of the Standstill Order will
be made by Dart on or before the second (2nd) Business Day after the date of
this Agreement set forth in the first sentence hereof, and, in order to
implement such transactions, the parties intend to cooperate in complying with
any requirements of the Standstill Order; and
WHEREAS, the parties further acknowledge that this Agreement, and the
transactions contemplated hereby, are subject to potential legal challenge, and
the parties intend to cooperate in defending against any such legal challenge
in order to assure the implementation and preservation of such transactions.
3
<PAGE> 8
NOW THEREFORE, for and in consideration of the premises and of the mutual
promises and agreements herein contained, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement and the recitals, unless there is something in the
subject context inconsistent therewith, the following terms shall have the
following meanings:
"Affiliate" of any Person means any person or entity that directly or
indirectly controls, is controlled by or is under common control with such
Person;
"Agreement" shall have the meaning ascribed to such term in the preamble
hereto;
"Attorneys' Fees Claim" shall have the meaning ascribed to such term in the
recitals;
"Bankruptcy Proceedings" means the bankruptcy proceedings described in Section
2.2(b);
"Business Day" means any day that is not a Saturday, a Sunday or a United
States federal holiday.
"business organization" means any corporation, limited liability company,
partnership or other entity;
"Class A Assignments" means the Assignments of Class A Shares in the form of
Exhibit A;
"Class A Common Stock" means the Class A Common Stock, $1.00 par value per
share, of Dart;
"Class A Options" means, collectively, the RMH Class A Options, the GGH Class A
Options and the LGH Class A Options;
"Class A Shares" means, collectively, the RMH Class A Shares, the GGH Class A
Shares and the LGH Class A Shares;
"Class B Assignments" means the Assignments of Class B Shares in the form of
Exhibit B;
"Class B Common Stock" means the Class B Common Stock, $1.00 par value per
share, of Dart;
"Class B Shares" means, collectively, the RMH Class B Shares, the GGH Class B
Shares and the LGH Class B Shares;
4
<PAGE> 9
"Closing" means the closing of the transactions contemplated by the Settlement
Documents to occur on the Closing Date;
"Closing Date" means, subject to the provisions set forth in Section 10.1, a
date mutually agreeable to the parties hereto, but not later than 15 days
following the date upon which all of the conditions precedent set forth in
Article 3 shall have been satisfied or waived;
"Costs" means any and all demands, claims, actions, suits, proceedings, losses,
damages, judgments, liabilities, costs and expenses, including, without
limitation, reasonable fees and expenses of legal counsel;
"Crown Books" means Crown Books Corporation, a Delaware corporation;
"Dart" means Dart Group Corporation, a Delaware corporation;
"Dart Acquisition Company" means any business organization that, at the time of
such determination, is a party to a memorandum of understanding, letter of
intent, agreement in principle or similar type of written understanding with
any Dart Company, or any Subsidiary or Affiliate of any thereof, that
contemplates the acquisition of control of any such business organization by
any Dart Company or any such Subsidiary or Affiliate of any thereof, or a
business combination involving any such business organization and any Dart
Company or any such Subsidiary or Affiliate, and with respect to such proposed
transaction a public announcement has been made and a copy thereof has been
furnished to RMH, GGH or LGH; provided, however, that a business organization
shall not be deemed a Dart Acquisition Company if (i) at the date of the first
public announcement of such memorandum of understanding, letter of intent,
agreement in principle or similar type of written understanding, any of RMH,
GGH or LGH (alone or with other members of a group) were the beneficial owners
of an aggregate of more than five percent (5%) of the outstanding voting
securities of such business organization, or (ii) within six (6) months after
such announcement, the transaction contemplated by such memorandum of
understanding, letter of intent or agreement in principle or a similar type of
written understanding has not become the subject of a definitive acquisition or
similar agreement;
"Dart Companies" means, collectively, Dart, Crown Books, Trak Auto, Dart/SFW,
SFW Holding and SFW;
"Dart Disclosure Exhibit" means the Dart Disclosure Exhibit attached to this
Agreement;
"Dart Disclosure Letter" means the Dart Disclosure Letter delivered by the Dart
Companies to RMH, GGH or LGH in connection with the execution and delivery of
this Agreement;
"Dart Restricted Securities" means the securities of any Dart Company or of any
Dart Acquisition Company;
"Dart/SFW" means Dart/SFW Corp., a Delaware corporation;
5
<PAGE> 10
"Dart/SFW Rights" means any and all rights to purchase shares of Dart/SFW
granted to or held by any of RMH and LGH, including, collectively, the RMH
Dart/SFW Rights, the MAH Trust Dart/SFW Rights, the NGH Trust Dart/SFW Rights
and the LGH Dart/SFW Rights;
"Environmental Claim" means any written notice of violation, claim, demand,
abatement order or other order or direction (conditional or otherwise) by any
Governmental Authority or any Person for any damage, including, without
limitation, personal injury (including sickness, disease or death), tangible or
intangible property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restrictions, in
each case relating to, resulting from or in connection with Hazardous
Materials;
"Environmental Laws" means any and all applicable federal, state and local
statutes, ordinances, orders, rules, regulations, plans, guidances, policies or
decrees and the like relating to (a) environmental matters, including, without
limitation, those relating to fines, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or injuries resulting from the
Release or threatened Release of Hazardous Materials, (b) the generation, use,
storage, transportation, treatment or disposal of Hazardous Materials, or (c)
occupational safety and health, industrial hygiene, land use or the protection
of human, plant or animal health or welfare, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. Section 9601 et seq.), and any analogous future or present local, state
and federal statutes and regulations promulgated pursuant thereto, each as
amended or supplemented;
"Environmental Liability" means any Environmental Claim and any other claim
resulting from the failure to comply with Environmental Laws, which claim, in
either case, arises from or relates to the property owned on the date hereof by
Seventy-Fifth Avenue Associates Limited Partnership or Trak Chicago Limited
Partnership;
"Escrow Fund" shall have the meaning set forth in Section 9.3;
"Exchange Act" means the Securities Exchange Act of 1934, as amended, including
all regulations promulgated pursuant thereto;
"Executive Committee" shall have the meaning ascribed to such term in the
recitals;
"Fairness Opinion" shall have the meaning ascribed to such term in the
recitals;
"GGH" means Gloria G. Haft, an individual residing in the State of Florida on
the date hereof;
"GGH Class A Options" shall have the meaning ascribed to such term in Section
2.1(c)(ii)(B);
6
<PAGE> 11
"GGH Class A Shares" means the 7,072 shares of the Class A Common Stock that
are referenced in Items 3 and 4 of Schedule 6.4(a) to the RGL Disclosure
Letter;
"GGH Class B Shares" means the 54,484 shares of Class B Common Stock that are
held of record by GGH;
"GGH Crown/Trak Options" shall have the meaning ascribed to such term in
Section 2.1(d)(ii)(B);
"GGH Interests" means, collectively, the GGH Class A Shares, the GGH Class B
Shares, the GGH Class A Options and the GGH Crown/Trak Options;
"Governmental Authority" means any federal or other national, state, municipal
or local government, domestic or foreign, any subdivision, agency, entity,
commission or authority thereof, or any quasi- governmental or private body
exercising any regulatory, taxing, importing or other governmental or
quasi-governmental authority;
"Governmental Requirement" means any statute, law, regulation, ordinance, rule,
judgment, rule of common law, order, decree, authorization, action, consent,
approval, grant, license, lease, permit, tariff, rate, certification,
exemption, franchise, concession, filing or registration with, or other
governmental restriction or any similar form of decision of, or determination
by, any Governmental Authority, whether now or hereafter in effect and in each
case as amended;
"Hazardous Materials" means (a) any chemical, material or substance at any time
defined as or included in the definition of "hazardous substance," "hazardous
waste," "hazardous material," "infectious wastes," "infectious material,"
"bloodborne pathogen," "etiologic agent," "infectious substance," "toxic
substance" or any other formulations intended to define, list or classify
substances by reason of deleterious properties such as ignitibility,
corrosivity, reactivity, carcinogenicity, infectious nature, radioactivity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Law or publications
promulgated pursuant thereto, (b) any oil, petroleum, petroleum fraction or
petroleum derived substance, (c) any flammable substances or explosives, (d)
any radioactive wastes, substances or other materials, (e) asbestos in any
form, (f) urea formaldehyde foam insulation, (g) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million, (h) pesticides and (i) any
other chemical, material or substance which is limited or regulated by any
Governmental Authority or which may or could pose a hazard to the health and
safety of the owners, occupants, employees or any Persons;
"Heads of Agreement" means the Heads of Agreement as Between Herbert and Ronald
Haft and Gloria, Robert and Linda Haft dated May 17, 1994;
"HHH" means Herbert H. Haft, an individual residing in the District of Columbia
on the date hereof, and his heirs, legal representatives and assigns;
7
<PAGE> 12
"HHH Settlement Agreement" means a definitive Settlement Agreement, if any, by
and between Dart and HHH (together with all schedules and exhibits thereto) the
principal terms of which are set forth on Exhibit C to this Agreement, pursuant
to which HHH agrees, among other things, to relinquish his claims to control of
Dart, dispose (or agree to dispose) of all or substantially all of his capital
stock of Dart, disclaim any equity interest in SFW and SFW Holding, and resign
any positions of employment and board representation with Dart, SFW and SFW
Holding, and which provides that simultaneous making of the RSH/HHH Loan by
Dart will be a condition to closing that cannot be waived;
"HHH Settlement Lawsuit" shall have the meaning ascribed to such term in the
recitals;
"Indemnification Escrow Agent" means Alex Brown & Sons Incorporated, as escrow
agent under the Indemnification Escrow Agreement;
"Indemnified Party" shall have the meaning ascribed to such term in Section
9.2(a);
"Indemnification Escrow Agreement" means that certain escrow agreement in the
form of Exhibit D;
"Indemnifying Party" shall have the meaning ascribed to such term in Section
9.2(a);
"LGH" means Linda G. Haft, an individual residing in the State of Maryland on
the date hereof;
"LGH Class A Options" shall have the meaning ascribed to such term in Section
2.1(c)(iii)(B);
"LGH Class A Shares" means the 33,501 shares of the Class A Common Stock that
are referenced in Items 3 and 4 of Schedule 7.4(a) to the RGL Disclosure
Letter;
"LGH Class B Shares" means the 25,246 shares of the Class B Common Stock that
are held of record by LGH;
"LGH Dart/SFW Rights" means any and all rights or options to purchase the
common stock of Dart/SFW that LGH may have, including options to purchase five
(5) shares of stock in Dart/SFW granted to HHH pursuant to a Stock Option
Agreement dated as of August 30, 1989 and assigned by HHH to LGH pursuant to an
Assignment Agreement dated as of January 11, 1990;
"LGH Interests" means, collectively, the LGH Class A Shares, the LGH Class B
Shares, the LGH Class A Options and the LGH Dart/SFW Rights;
"Lien" means, with respect to any property, any encumbrance, security interest,
mortgage, lien, pledge, claim, lease, agreement, right of first refusal,
option, limitation on transfer or use or assignment or licensing, restrictive
easement, charge or any other restriction or third
8
<PAGE> 13
party rights of any kind with respect to any property or assets (tangible or
intangible), including any restriction on the ownership, use, voting, transfer,
possession, receipt of income or other exercise of any attributes of ownership
of such property or assets (whether tangible, intangible, real or personal);
"Liquidating Distribution" shall have the meaning ascribed to such term in
Section 9.1(c)(i);
"Liquidating Distribution Notice" shall have the meaning ascribed to such term
in Section 9.1(c)(iii);
"Liquidation Date" shall have the meaning ascribed to such term in Section
9.1(c)(i);
"MAH Trust" means the Michael Alexander Haft Trust established under the Deed
of Trust dated December 21, 1989;
"MAH Trust Dart/SFW Rights" means any and all rights or options to purchase the
shares of common stock of Dart/SFW that the MAH Trust may have, including its
options to purchase three (3) shares of stock in Dart/SFW granted to RMH
pursuant to the RMH Stock Option Agreement and assigned by RMH to the MAH Trust
pursuant to the RMH Assignment Agreement;
"Material Adverse Effect" means a material adverse effect upon the ability of
the Person in question to perform their respective obligations hereunder and
under any of the other Settlement Documents or, if applicable, under the
Transfer Agreements;
"Mutual Releases" means the mutual releases in the forms of Exhibits E(1), E(2)
and E(3);
"New Escrow Fund" shall have the meaning ascribed to such term in Section
9.1(c)(i);
"NGH Trust" means the Nicholas Gabriel Haft Trust established under the Deed of
Trust dated December 21, 1989;
"NGH Trust Dart/SFW Rights" means any and all rights or options to purchase the
shares of common stock of Dart/SFW that the NGH Trust may have, including its
options to purchase three (3) shares of stock in Dart/SFW granted to RMH
pursuant to the RMH Stock Option Agreement and assigned by RMH to the NGH Trust
pursuant to the RMH Assignment Agreement;
"Options Lawsuit" shall have the meaning ascribed to such term in the recitals;
"Other Dart Company Rights" means any and all rights or options to purchase the
securities or other interests in and to any of the Dart Companies (other than
those rights or options otherwise expressly addressed herein);
9
<PAGE> 14
"Participant" shall have the meaning ascribed to such term in Regulation 14A
under the Exchange Act;
"Pennsy Lawsuit" shall have the meaning ascribed to such term in the recitals;
"Person" means any individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or Governmental
Authority;
"Release" means any emission, spill, seepage, leak, escape, leaching, discharge,
injection, pumping, pouring, emptying, dumping, disposal or release of Hazardous
Materials from any source into or upon the environment, including the air, soil,
improvements, surface water or groundwater;
"Release Lawsuit" means the action filed by RMH captioned Robert M. Haft v.
Dart Group Corporation, Civ. A. No. 95-CA-4644 (D.C. Super. Ct., filed June 12,
1995);
"Requested Consentors" shall have the meaning ascribed to such term in Section
11.1(a)(iii);
"Retained Amount" shall have the meaning ascribed to such term in Section
2.1(c)(i)(A);
"RGL Disclosure Exhibit" means the RGL Disclosure Exhibit attached to this
Agreement;
"RGL Disclosure Letter" means the Disclosure Letter delivered by RGL to the
Dart Companies in connection with the execution and delivery of this Agreement;
"RGL Indemnitees" shall, for purposes of Article 9, have the meaning ascribed
to such term in Section 9.1(a); "
"RGL Interests" means, collectively, the RMH Interests, the GGH Interests and
the LGH Interests;
"RMH" means Robert M. Haft, an individual residing in the District of Columbia
on the date hereof;
"RMH 1987 Rights" means any and all rights or options to purchase the
securities or other interests in and to any of the Dart Companies granted to
RMH pursuant to the Dart Board of Directors resolution of September 10, 1987;
"RMH Assignment Agreement" means that certain Assignment Agreement, dated as of
January 11, 1990, pursuant to which RMH assigned to the RMH Children Trusts
certain of the Dart/SFW Rights;
"RMH Children Trusts" means, collectively, the MAH Trust and the NGH Trust;
10
<PAGE> 15
"RMH Class A Options" shall have the meaning ascribed to such term in Section
2.1(c)(i)(B);
"RMH Class A Shares" means the 36,671 shares of the Class A Common Stock that
are referenced in Items 3-9 of Schedule 5.5(a) to the RGL Disclosure Letter;
"RMH Class B Shares" means the 25,246 shares of the Class B Common Stock that
are held of record by RMH;
"RMH Crown/Trak Options" shall have the meaning ascribed to such term in Section
2.1(d)(i)(B);
"RMH Dart/SFW Rights" means any and all rights or options to purchase the
common stock of Dart/SFW that RMH and his transferees may have, including: (i)
all rights granted to RMH pursuant to the Dart Board of Directors resolution of
September 10, 1987; and (ii) ten (10) options to purchase shares of stock in
Dart/SFW granted pursuant to the RMH Stock Option Agreement, as referenced in
Items 6-9 of Schedule 5.5(b) to the RGL Disclosure Letter;
"RMH Derivative Lawsuit" shall have the meaning ascribed to such term in the
recitals;
"RMH Interests" means the RMH Class A Shares, the RMH Class B Shares, the RMH
Class A Options, the RMH Crown/Trak Options, the RMH Dart/SFW Rights, the RMH
Total Beverage Rights and the RMH 1987 Rights;
"RMH Stock Option Agreement" means that certain Stock Option Agreement, dated
as of August 30, 1989, by and between Dart/SFW and RMH;
"RMH Total Beverage Rights" means the right of RMH to purchase 10% (on a
pro-forma, after-purchase basis) of the outstanding shares of Total Beverage
GB, Inc., for a purchase price of $149,500, in accordance with the order of the
U.S. District Court dated March 23, 1995 in Delaware;
"RSH" means Ronald S. Haft, an individual residing in the State of Florida on
the date hereof, and his heirs, legal representatives and assigns;
"RSH Settlement" shall have the meaning ascribed to such term in the recitals;
"RSH Settlement Agreement" means that certain Settlement Agreement dated
October 6, 1995 by and between Dart and RSH, together with all schedules and
exhibits thereto and all documents, agreements and instruments executed and
delivered in connection therewith at the closing thereunder, as amended by the
RSH First Supplemental Agreement and, if executed and not terminated, the RSH
Second Supplemental Agreement;
11
<PAGE> 16
"RSH First Supplemental Agreement" means that certain First Supplemental
Settlement Agreement that Dart is entering into with RSH contemporaneously
herewith, or which Dart expects to enter into with RSH shortly after the date
hereof, in connection with the transactions contemplated by this Agreement;
"RSH Second Supplemental Agreement" means that certain Second Supplemental
Settlement Agreement, if any, entered into between Dart and RSH
contemporaneously with, and in connection with the transactions contemplated
by, the HHH Settlement Agreement;
"RSH/HHH Loan" means a $10,000,000 loan that may be made by Dart in connection
with the RSH Second Supplemental Agreement and the HHH Settlement Agreement and
secured in part by interests in the partnerships owning the properties
comprising Rolling Valley Mall and Maryland City Plaza, all pursuant to a loan
agreement in substantially the form attached hereto as Exhibit F;
"Settlement Documents" means, collectively, this Agreement, the Exhibits
hereto, the RGL Disclosure Letter, the Dart Disclosure Letter, the Class A
Assignments, the Class B Assignments, the Indemnification Escrow Agreement, the
Mutual Releases, the Transfer Agreements, the Termination of Class A Options,
the Termination of Crown/Trak Stock Options, the Termination of Dart/SFW Rights
Agreement and the Termination of RMH 1987 Rights and Termination of Total
Beverage Rights Agreement;
"Section 225 Lawsuit" shall have the meaning ascribed to such term in the
recitals;
"SFW" means Shoppers Food Warehouse Corp., a Delaware corporation;
"SFW Holding" means SFW Holding Corp., a Delaware corporation;
"SFW Escrow" shall have the meaning ascribed to such term in Section 3.1(d);
"Solicitation" shall have the meaning ascribed to such term in Regulation 14A
under the Exchange Act;
"Special Litigation Committee" shall have the meaning ascribed to such term in
the recitals;
"Standstill Order" shall have the meaning ascribed to such term in the
recitals;
"Subsidiary" of a company or corporation shall be construed as a reference to
any company or corporation: (a) that is controlled, directly or indirectly, by
the first-mentioned company or corporation; (b) more than half of the issued
share capital of which is beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or (c) that is a Subsidiary of another
Subsidiary of the first-mentioned company or corporation; and, for these
purposes, a company or corporation shall be treated as being controlled by
another if that other company or corporation is able to direct its affairs
and/or to control the composition of its board of directors or equivalent body;
12
<PAGE> 17
"Termination of Class A Options" means the instruments of termination of the
Class A Options in the form of Exhibit G;
"Termination of Crown/Trak Stock Options" means the instruments of termination
of the GGH Crown/Trak Options and the RMH Crown/Trak Options in the form of
Exhibit H;
"Termination of Dart/SFW Rights Agreement" means the instruments of termination
of Dart/SFW Rights in the form of Exhibit I;
"Termination of RMH 1987 Rights and Termination of Total Beverage Rights
Agreement" means the instruments of termination of the RMH 1987 Rights and the
RMH Total Beverage Rights in the form of Exhibit J;
"Trak Auto" means Trak Auto Corporation, a Delaware corporation;
"Transfer Agreements" shall have the meaning ascribed to such term in the
recitals;
"Voting Trustee" means the current voting trustee appointed under that certain
Voting Trust Agreement dated October 6, 1995 by and among RSH, Dart, Larry G.
Schafran and Sidney B. Silverman, as initial voting trustees.
"WP&Co." means Wasserstein Perella & Co., Inc.
1.2 INTERPRETATION
In this Agreement, unless the context otherwise requires or specifies:
(a) the singular includes the plural and vice versa;
(b) all references to times of the day are to Washington, D.C. time;
(c) references herein to a "Section," "Article," "Exhibit" or a
"recital" are references to a section hereof, an article hereof, an
Exhibit hereto or a recital hereto;
(d) the headings in this Agreement, and Exhibits, are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement;
(e) any reference to this Agreement or any other agreement or document
shall be construed as a reference to this Agreement or, as the case
may be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented;
13
<PAGE> 18
(f) any reference to a statute or treaty shall be construed as a
reference to such statute as the same may have been, or may from
time to time be, amended or re-enacted; and
(g) any reference herein to "including" shall be construed as a
reference to "including but not limited to" unless the context
otherwise requires.
ARTICLE 2. SETTLEMENT
2.1 SETTLEMENT TRANSACTIONS
The parties hereto agree that they shall implement the settlement
contemplated by this Agreement by entering into the documents and performing
the transactions set forth below at the times, in accordance with the
procedures and subject to the conditions set forth in this Agreement and the
other Settlement Documents.
(a) CLASS B SHARES. On the Closing Date, RMH, GGH and LGH shall
deliver, or shall cause to be delivered, to Dart share certificates evidencing
all of the Class B Shares, and shall execute in blank and deliver, or shall
cause to be executed in blank and delivered, to Dart such Class B Assignments
as are necessary to sell, assign and transfer to Dart all of the Class B Shares
free and clear of all Liens (except as set forth in Schedule 2.1A to the RGL
Disclosure Exhibit or the RGL Disclosure Letter), and in exchange therefor,
Dart shall pay to RMH, GGH and LGH and/or their respective designees (as set
forth in Schedule 2.1B to the RGL Disclosure Letter) (based on a purchase price
of $140.00 per share) an aggregate amount in cash of $14,696,640, as follows:
(i) On the Closing Date, RMH shall deliver, or shall cause to be
delivered, to Dart share certificates evidencing the RMH Class B Shares,
and shall execute in blank and deliver, or shall cause to be executed in
blank and delivered, to Dart the Class B Assignments for the RMH Class B
Shares, in exchange for cash payment(s) by Dart to RMH and/or his
designee (as set forth in Schedule 2.1B to the RGL Disclosure Letter), in
the total amount of $3,534,440.
(ii) On the Closing Date, GGH shall deliver, or shall cause to be
delivered, to Dart share certificates evidencing the GGH Class B Shares,
and shall execute in blank and deliver, or shall cause to be executed in
blank and delivered, to Dart the Class B Assignments for the GGH Class B
Shares, in exchange for cash payment(s) by Dart to GGH and/or her
designee (as set forth in Schedule 2.1B to the RGL Disclosure Letter), in
the total amount of $7,627,760.
(iii) On the Closing Date, LGH shall deliver, or shall cause to be
delivered, to Dart share certificates evidencing the LGH Class B Shares,
and shall execute in blank and deliver, or shall cause to be executed in
blank and delivered, to Dart the Class B Assignments for the LGH Class B
Shares, in exchange for cash payment(s)
14
<PAGE> 19
by Dart to LGH and/or her designee (as set forth in Schedule 2.1B to the
RGL Disclosure Letter), in the total amount of $3,534,440.
(b) CLASS A SHARES.
(i) CLASS A SHARES (OTHER THAN THOSE OWNED BY THE ROBERT AND MARY
HAFT FOUNDATION). On the Closing Date, each of RMH, GGH and LGH shall
deliver, or shall cause to be delivered, to Dart the share certificates
evidencing the Class A Shares, and RMH, GGH and LGH shall execute in
blank and deliver, or shall cause to be executed in blank and delivered,
to Dart the Class A Assignments necessary to sell, assign and transfer to
Dart all of the Class A Shares free and clear of all Liens (except as set
forth in Schedule 2.1A to the RGL Disclosure Exhibit or the RGL
Disclosure Letter), and in exchange therefor, Dart shall pay to RMH, GGH,
LGH and the RMH Children Trusts and/or their respective designees (as set
forth in Schedule 2.1B to the RGL Disclosure Letter) (based on a purchase
price of $87.50 per share) an aggregate amount in cash of $5,446,350 as
follows:
(A) On the Closing Date, RMH shall deliver, or cause to be
delivered, to Dart share certificates evidencing all of the RMH
Class A Shares, other than those RMH Class A Shares held of record
by either The Robert and Mary Haft Foundation or RMH Children
Trusts, and shall execute in blank and deliver, or shall cause to
be executed in blank and delivered, to Dart the Class A Assignments
for the RMH Class A Shares, other than those RMH Class A Shares
held of record by either The Robert and Mary Haft Foundation or RMH
Children Trusts, in exchange for cash payment(s) by Dart to RMH
and/or his designee (as set forth in Schedule 2.1B to the RGL
Disclosure Letter), in the total amount of $1,862,262.50
(B) On the Closing Date, GGH shall deliver, or cause to be
delivered, to Dart share certificates evidencing all of the GGH
Class A Shares, and shall execute in blank and deliver, or shall
cause to be executed in blank and delivered, to Dart the Class A
Assignments for the GGH Class A Shares, in exchange for cash
payment(s) by Dart to GGH and/or her designee (as set forth in
Schedule 2.1B to the RGL Disclosure Letter), in the total amount of
$618,800
(C) On the Closing Date, LGH shall deliver, or cause to be
delivered, to Dart share certificates evidencing all of the LGH
Class A Shares, and shall execute in blank and deliver, or shall
cause to be executed in blank and delivered, to Dart the Class A
Assignments for the LGH Class A Shares, in exchange for cash
payment(s) by Dart to LGH and/or her designee (as set forth in
Schedule 2.1B to the RGL Disclosure Letter), in the total amount of
$2,931,337.50.
15
<PAGE> 20
(D) On the Closing Date, RMH shall cause to be delivered to
Dart share certificates evidencing all of the 194 Class A Shares
held of record by the MAH Trust, and RMH shall cause to be executed
in blank and delivered to Dart the Class A Assignments necessary to
sell, assign and transfer to Dart such 194 Class A Shares, and in
exchange therefor, Dart shall pay to the MAH Trust (based on a
purchase price of $87.50 per share) an amount in cash of $16,975.
(E) On the Closing Date, RMH shall cause to be delivered to
Dart share certificates evidencing all of the 194 Class A Shares
held of record by the NGH Trust, and RMH shall cause to be executed
and delivered to Dart the Class A Assignments necessary to sell,
assign and transfer to Dart such 194 Class A Shares, and in
exchange therefor, Dart shall pay to the NGH Trust (based on a
purchase price of $87.50 per share) an amount in cash of $16,975.
(ii) CLASS A SHARES OWNED BY THE ROBERT AND MARY HAFT FOUNDATION.
On the Closing Date, RMH shall cause to be delivered to Dart share
certificates evidencing all of the 15,000 Class A Shares held of record
by The Robert and Mary Haft Foundation, and RMH shall cause The Robert
and Mary Haft Foundation to execute in blank and deliver to Dart the
Class A Assignments necessary to sell, assign and transfer to Dart such
15,000 Class A Shares free and clear of all Liens (except as set forth in
Schedule 2.1A to the RGL Disclosure Exhibit or the RGL Disclosure
Letter), and in exchange therefor, Dart shall pay to The Robert and Mary
Haft Foundation (based on a purchase price of $87.50 per share) an amount
in cash of $1,312,500.
(c) CLASS A OPTIONS. On the Closing Date, each of RMH, GGH and LGH
shall execute and deliver to Dart the Termination of Class A Options, pursuant
to which each of RMH, GGH and LGH shall terminate any and all options to
purchase shares of Class A Common Stock that were granted to any of RMH, GGH or
LGH, in exchange for payments by Dart of an aggregate amount in cash of
$9,286,560, as follows:
(i) On the Closing Date, RMH shall terminate:
(A) any and all options to purchase Class A Common Stock
granted to RMH under the Dart Group Corporation 1987 Executive
Non-Qualified Stock Option Plan and under the Dart Drug Corporation
1983 Executive Non-Qualified Stock Option Plan, in exchange for a
cash payment by Dart to RMH in the amount of $8,400,001; provided,
however, that Dart shall retain $45,000 of the cash payable by Dart
to RMH pursuant to this Section (the "Retained Amount") to be
applied as set forth below. If Dart and HHH shall have consummated
the closing pursuant to the HHH Settlement Agreement on or before
November 30, 1997 (unless Dart shall have obtained a final court
order approving the HHH Settlement Agreement on or before November
30, 1997, in which case the date for consummation of the closing
pursuant to the HHH Settlement Agreement shall be the later of
November 30, 1997 or ninety
16
<PAGE> 21
(90) days after the date of such order), then the purchase price payable
by Dart to RMH under this Section shall be reduced by $45,000 and Dart
shall keep the Retained Amount as partial consideration for Dart's sale
of certain personal property to HHH in connection with the HHH Settlement
Agreement. If the closing of the transactions contemplated in the HHH
Settlement Agreement have not occurred on or before the date specified in
the immediately preceding sentence, then on such date Dart shall pay the
Retained Amount to RMH, without interest. RMH shall thereafter be
obligated to pay Dart an amount equal to $45,000 upon the closing of the
transactions contemplated in the HHH Settlement Agreement as partial
consideration for Dart's sale of certain personal property to HHH in
connection with the HHH Settlement Agreement; and
(B) any and all other rights or options to purchase Class A
Common Stock granted to RMH under any and all other agreements, in
exchange for a cash payment by Dart to RMH in the amount of
$603,897 (collectively, the rights and options referred to in these
subsections (A) and (B) are hereinafter referred to as the "RMH
Class A Options").
(ii) On the Closing Date, GGH shall terminate:
(A) any and all options to purchase shares of Class A
Common Stock granted to GGH under the Dart Drug Corporation 1983
Executive Non-Qualified Stock Option Plan, in exchange for a cash
payment by Dart to GGH in the amount of $90,000; and
(B) any and all other rights or options to purchase Class A
Common Stock granted to GGH under any and all other agreements, in
exchange for a cash payment by Dart to GGH in the amount of $72,467
(collectively, the rights and options referred to in these
subsections (A) and (B) are hereinafter referred to as the "GGH
Class A Options").
(iii) On the Closing Date, LGH shall terminate:
(A) any and all options to purchase Class A Common Stock
granted to LGH under the Dart Drug Corporation 1983 Executive
Non-Qualified Stock Option Plan, in exchange for a cash payment by
Dart to LGH in the amount of $90,000; and
(B) any and all other rights or options to purchase Class A
Common Stock granted to LGH under any and all other agreements, in
exchange for a cash payment by Dart to LGH in the amount of $30,195
(collectively, the rights and options referred to in these
subsections (A) and (B) are hereinafter referred to as the "LGH
Class A Options").
17
<PAGE> 22
(d) DART/SFW RIGHTS/CROWN/TRAK OPTIONS. On the Closing Date, (1) each
of RMH and GGH shall execute and deliver to Dart the Termination of Crown/Trak
Stock Options, pursuant to which each of RMH and GGH shall terminate any and
all rights to purchase shares of the capital stock of Trak Auto and Crown Books
that were granted to any of RMH or GGH, in exchange for payments by Dart of an
aggregate amount in cash of $250,000 and (2) LGH and RMH, in his individual
capacity and as trustee for each of the RMH Children Trusts, shall execute and
deliver to Dart and Dart/SFW, and RMH shall cause each of the RMH Children
Trusts to execute and deliver to Dart and Dart/SFW, the Termination of Dart/SFW
Rights Agreement, pursuant to which RMH, the RMH Children Trusts and LGH shall
terminate the Dart/SFW Rights, including the rights to purchase 15 shares of
Dart/SFW, in exchange for payments by Dart of an aggregate amount in cash of
$9,700,000, as follows:
(i) On the Closing Date, RMH shall terminate:
(A) any and all rights or options to purchase shares of
common stock of Crown Books granted to RMH, including options to
purchase 80,000 shares of common stock of Crown Books, in exchange
for a cash payment by Dart to RMH in the amount of $40,000; and
(B) any and all rights or options to purchase shares of
common stock of Dart granted to RMH, including options to purchase
40,000 shares of common stock of Trak Auto, in exchange for a cash
payment by Trak Auto to RMH in the amount of $178,260.90
(collectively, the rights or options referred to in these
subsections (A) and (B) are hereinafter referred to as the "RMH
Crown/Trak Options").
(ii) On the Closing Date, GGH shall terminate:
(A) any and all rights or options to purchase shares of
common stock of Crown Books granted to GGH, including options to
purchase 10,000 shares of common stock of Crown Books, in exchange
for a cash payment by Dart to GGH in the amount of $5,000; and
(B) any and all rights or options to purchase shares of
common stock of Trak Auto granted to GGH, including options to
purchase 6,000 shares of common stock of Trak Auto, in exchange for
a cash payment by Dart to GGH in the amount of $26,739.10
(collectively, the rights or options referred to in these
subsections (A) and (B) are hereinafter referred to as the "GGH
Crown/Trak Options").
(iii) On the Closing Date, in exchange for cash payment(s) by Dart
to RMH in the total amount of $646,666.67, RMH shall execute and deliver,
or cause to be executed and delivered to Dart and Dart/SFW, the
Termination of Dart/SFW Rights Agreement.
18
<PAGE> 23
(iv) On the Closing Date, RMH shall cause to be executed and
delivered to Dart and Dart/SFW the Termination of Dart/SFW Rights
Agreement to terminate the RMH Dart/SFW Rights referenced in Item 9 of
Schedule 5.5(b) to the RGL Disclosure Letter, in exchange for a cash
payment by Dart to RMH's designee (as set forth in Schedule 2.1B to the
RGL Disclosure Letter) in the amount of $1,940,000.
(v) On the Closing Date, RMH, as trustee for the MAH Trust, shall
execute and deliver, or shall cause to be executed and delivered, to Dart
and Dart/SFW the Termination of Dart/SFW Rights Agreement to terminate
the MAH Trust Dart/SFW Rights, in exchange for a cash payment by Dart to
the MAH Trust in the amount of $1,940,000.
(vi) On the Closing Date, RMH, as trustee for the NGH Trust, shall
execute and deliver, or shall cause to be executed and delivered, to Dart
and Dart/SFW the Termination of Dart/SFW Rights Agreement to terminate
the NGH Trust Dart/SFW Rights, in exchange for a cash payment by Dart to
the NGH Trust in the amount of $1,940,000.
(vii) On the Closing Date, LGH shall execute and deliver, or shall
cause to be executed and delivered, to Dart and Dart/SFW the Termination
of Dart/SFW Rights Agreement to terminate the LGH Dart/SFW Rights, in
exchange for a cash payment by Dart to LGH's designee (as set forth in
Schedule 2.1B to the RGL Disclosure Letter) in the amount of
$3,233,333.33.
(e) RMH 1987 RIGHTS AND TOTAL BEVERAGE RIGHTS. As additional
consideration for the Dart Company obligations under this Agreement, RMH shall
terminate all of the RMH 1987 Rights and all of the RMH Total Beverage Rights.
Accordingly, on the Closing Date, RMH shall execute and deliver to Dart the
Termination of RMH 1987 Rights and Termination of Total Beverage Rights
Agreement
(f) MUTUAL RELEASES. On the Closing Date, each Dart Company and each
of RMH, GGH and LGH shall execute and deliver to the other parties hereto the
Mutual Releases.
(g) REIMBURSEMENT OF CERTAIN RMH EXPENSES. On the Closing Date, Dart
shall pay cash to RMH, in the amount of $18,552.26 as payment in full for all
legal expenses incurred as of the date hereof in his capacity as an officer,
director, employee or agent of any of the Dart Companies.
(h) ARTWORK. On the Closing Date, Dart shall return to RMH (or
purchase from RMH for $35,244) the following artwork: (i) one (1) Yankel
Ginzburg acrylic on canvas titled "Julian Commission" (was hanging in the Crown
Conference Room in June, 1993); (ii) one (1) Yankel Ginzburg acrylic on canvas
titled "Composition" (was hanging in Robert Haft's office in June, 1993); and
(iii) nine (9) black and white Portrait Engravings, English,
19
<PAGE> 24
circa 1730 (were hanging in the Board Room, the Dart Conference Room, and Linda
Haft's office in June, 1993).
2.2 COURT PROCEEDINGS
To implement the transactions contemplated by Section 2.1, the parties
hereto shall make the following filings at the times and subject to the
conditions set forth below:
(a) LAWSUITS.
(i) The parties shall cooperate in preparing and filing pleadings
necessary to obtain the dismissal of all outstanding litigation between
them by the Closing Date and to suspend or stay all outstanding
litigation between them during the period prior to the Closing Date.
(ii) Within 21 days of the date of execution of this Agreement, to
satisfy the conditions precedent stated in Sections 3.1(g), 3.1(h),
3.2(o) and 3.2(p), the necessary parties shall make appropriate filings
to obtain orders requiring the dismissal upon the closing of this
Agreement (A) of the Section 225 Lawsuit; (B) of the RMH Derivative
Lawsuit; (C) of the Options Lawsuit; (D) of the Release Lawsuit; (E) of
RMH and GGH as defendants in the Pennsy Lawsuit; and (F) of the
Attorneys' Fees Claim.
(b) BANKRUPTCY PROCEEDINGS. On the Closing Date, RMH and LGH shall
file appropriate papers with the U.S. Bankruptcy Court for the District of
Maryland, Southern Division to:
(i) (A) Advise the court of the satisfaction, solely as between
Dart and the "Other Family Members," of the condition precedent to
effectiveness set forth in section 13.01(f) of the Plan of Reorganization
confirmed by order entered on or about July 14, 1997 in the bankruptcy
case captioned In re: Seventy-Fifth Avenue Limited Partnership (No.
95-1-3 103-DK) and (B) withdraw the Disclosure Statement and Plan of
Reorganization filed by RMH and LGH with respect to such proceeding; and
(ii) (A) Advise the court of the satisfaction, solely as between
Dart and the "Other Family Members," of the condition precedent to
effectiveness set forth in section 13.01(d) of the Plan of Reorganization
confirmed by order entered on or about July 14, 1997 in the bankruptcy
case captioned In re: Trak Chicago Limited Partnership I (No.
95-1-3099-DK) and (B) withdraw the Disclosure Statement and Plan of
Reorganization filed by RMH and LGH with respect to such proceeding.
(c) EXECUTION OF DOCUMENTS. The parties hereto agree to execute and
deliver such further documents, agreements and instruments as are necessary to
make the filings specified in this Section 2.2.
20
<PAGE> 25
2.3 CLOSING; PAYMENTS
(a) METHOD OF PAYMENT. Except as otherwise provided herein, all
payments to be made on the Closing Date (or thereafter pursuant to any
Settlement Document) shall be made by certified check, bank check or wire
transfer of immediately available funds pursuant to written instructions from
the party entitled to receive the payment.
(b) CLOSING DATE. The Closing shall take place on the Closing Date at
the offices of Hogan & Hartson L.L.P., 8300 Greensboro Drive, McLean, Virginia
22102, or such other location upon which the parties hereto shall agree.
(c) WITHHOLDINGS. Notwithstanding any other provision of this
Agreement, the payments to be made pursuant to this Agreement shall be subject
to reduction for any Federal, District of Columbia, state or local tax
withholding that is required by law or applicable regulation, as set forth in
Schedule 2.3 to the Dart Disclosure Letter with respect to the payments to be
made at Closing pursuant to Section 2.1.
ARTICLE 3. CONDITIONS PRECEDENT
3.1 CONDITIONS TO OBLIGATIONS OF THE DART COMPANIES
The obligations of the Dart Companies to make the deliveries and perform
the transactions contemplated at the Closing shall be subject to the delivery
to Dart's Secretary of written consents executed by each of RMH, GGH and LGH,
in form satisfactory to Dart, removing John L. Mason, Ellen V. Sigal and
Michael Ryan as putative directors of Dart. In addition, the obligations of
the Dart Companies to make the deliveries and perform the transactions
contemplated at the Closing shall be subject to satisfactory completion on or
prior to the Closing Date of each of the following conditions, any of which may
be waived by the Dart Companies; provided, however, that, subject to Section
10.14 of this Agreement, all conditions in this Section 3.1 shall be deemed to
be fully satisfied or waived by the Dart Companies upon the Dart Companies'
performance of their obligations under Section 2.1 and the Dart Companies'
execution and delivery of the Settlement Documents on the Closing Date:
(a) EXECUTION. Each of RMH, GGH and LGH, and RMH in his capacity as
trustee of the RMH Children Trusts, as applicable, shall have duly executed and
delivered this Agreement and each of the other Settlement Documents.
(b) REPRESENTATIONS AND WARRANTIES.
(i) All of the representations and warranties of RMH, GGH and LGH
contained in this Agreement and any of the other Settlement Documents
shall be true, correct and complete on the date hereof and shall be true,
correct and complete in all respects on the Closing Date with the same
effect as if made on the Closing Date, and
21
<PAGE> 26
each of RMH, GGH and LGH shall have executed and delivered to the Dart
Companies at Closing a certificate to that effect.
(ii) All of the representations and warranties contained in the
Transfer Agreements shall be true, correct and complete on the date
hereof and shall be true, correct and complete in all respects on the
Closing Date with the same effect as if made on the Closing Date, and
each of the parties to the Transfer Agreements shall have executed and
delivered to the Dart Companies at Closing a certificate to that effect
regarding their respective representations and warranties.
(c) NO LEGAL BAR. None of the parties hereto shall be prohibited by
any order, writ, injunction or decree of any Governmental Authority of
competent jurisdiction from consummating the transactions contemplated by this
Agreement.
(d) FINANCING. Dart shall have obtained at least $50,000,000 from the
restricted account established under that certain Pledge Agreement, dated as of
June 26, 1997, by and among SFW and Norwest Bank Minnesota, National
Association, as Trustee (the "SFW Escrow").
(e) PLANS OF REORGANIZATION CLOSINGS. The plans of reorganization
confirmed by order entered on or about July 14, 1997 in the Bankruptcy
Proceedings shall have become effective and all of the transactions
contemplated thereby shall have been consummated.
(f) HHH CONSENT. If, at the time of the Closing, Dart shall have
entered into an HHH Settlement Agreement and such HHH Settlement Agreement
shall not have terminated, then HHH shall have consented to the transactions
contemplated by this Agreement, which consent may be evidenced in the HHH
Settlement Agreement or by a separate written consent executed by HHH, but
which in any event, must be similar in substance to the consent set forth in
Exhibit K.
(g) DISMISSALS OF CERTAIN LITIGATION. An order of the Court shall have
been entered dismissing with prejudice or, if the parties agree that the action
may be dismissed by stipulation, stipulations shall have been filed that are
executed by all parties to each litigation dismissing with prejudice (i) the
Section 225 Lawsuit; (ii) the Options Lawsuit; (iii) the Release Lawsuit; (iv)
the claims between the parties in the Pennsy Lawsuit; (v) the individual claims
stated in the RMH Derivative Lawsuit; and (vi) the Attorneys' Fees Claim.
(h) DISMISSAL OF DERIVATIVE CLAIMS. An order of the Delaware Court of
Chancery shall have been entered dismissing the derivative claims in the RMH
Derivative Lawsuit, with or without prejudice.
(i) PERFORMANCE OF OTHER AGREEMENTS. All of the actions specified in
the Transfer Agreements to be taken at the time of the Closing shall have
occurred.
22
<PAGE> 27
(j) TERMINATION OF CERTAIN INTRA-FAMILY ARRANGEMENTS. RMH, GGH, LGH,
the RMH Children Trusts and any party to any of the Transfer Agreements shall
have executed and delivered such documents as Dart may reasonably request to
terminate any proxy and other arrangements among them relating to any of the
RGL Interests.
3.2 CONDITIONS TO OBLIGATIONS OF RMH, GGH AND LGH
The obligations of RMH, GGH and LGH to make the deliveries and perform
the transactions contemplated at the Closing shall be subject to satisfactory
completion on or prior to the Closing Date of each of the following conditions,
any of which may be waived by RMH, GGH and LGH; provided, however, that,
subject to Section 10.14 of this Agreement, all conditions in this Section 3.2
shall be deemed to be fully satisfied or waived by RMH, GGH and LGH upon RMH's,
GGH's and LGH's performance of their respective obligations under Section 2.1
and RMH's, GGH's and LGH's execution and delivery of the Settlement Documents
on the Closing Date:
(a) EXECUTION. Each of the Dart Companies, as applicable, shall have
duly executed and delivered this Agreement and each of the other Settlement
Documents.
(b) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Dart Companies contained in this Agreement and any of the
other Settlement Documents shall be true, correct and complete on the date
hereof and shall be true, correct and complete in all respects on the Closing
Date with the same effect as if made on the Closing Date, and each of the Dart
Companies shall have executed and delivered to RMH, GGH and LGH at Closing a
certificate to that effect.
(c) NO LEGAL BAR. None of the parties hereto shall be prohibited by
any order, writ, injunction or decree of any Governmental Authority of
competent jurisdiction from consummating the transactions contemplated by this
Agreement.
(d) GOVERNING DOCUMENTS. Each of the Dart Companies shall have
delivered to each of RMH, GGH and LGH a copy of its certificate of
incorporation, certified as of a recent date by the Secretary of State of the
State of Delaware, and its bylaws, certified as of the Closing Date by its
corporate secretary, together with good standing certificates for such Dart
Company from the Secretary of State of the States of Delaware and Maryland,
each dated as of a recent date.
(e) AUTHORIZING RESOLUTIONS. Each of the Dart Companies shall have
delivered to each of RMH, GGH and LGH (i) a copy of resolutions or unanimous
written consents of the Board of Directors of such Dart Company authorizing and
approving the execution, delivery and performance of this Agreement and any of
the other Settlement Documents to which such Dart Company is a party, certified
as being true, correct and in full force and effect as of the Closing Date by
its corporate secretary, and (ii) a copy of consent of the Voting Trustee
authorizing and approving the execution, delivery and performance of this
Agreement and
23
<PAGE> 28
any of the other Settlement Documents, certified as being true, correct and in
full force and effect as of the Closing Date by a notary public.
(f) INCUMBENCY CERTIFICATES. Each of the Dart Companies shall have
delivered to each of RMH, GGH and LGH a signature and incumbency certificate of
the officers of such Dart Company.
(g) TAX REPORTING. Dart, Crown Books and Trak Auto shall have
delivered to each of RMH, GGH and LGH a schedule of projected tax reporting of
payments to RMH, GGH and LGH on the Closing Date including, without limitation,
completed proposed IRS Forms W-2 and 1099, each in the same form as Dart
provided to RMH, GGH and LGH upon Dart's execution and delivery of this
Agreement. Combined Properties, Inc., shall have delivered to each of RMH and
LGH completed proposed IRS Forms K-1 for each of Seventy-Fifth Avenue Limited
Partnership and Trak Chicago Limited Partnership I reflecting the transactions
contemplated by the Plans of Reorganization; provided, that if Combined
Properties, Inc. shall have delivered to RMH and LGH proposed forms of such IRS
Forms K-1 within the timeframe for such delivery specified in Section 8.2(h)
hereof and RMH and LGH shall not have provided written notice to Dart that they
object to such proposed forms within the timeframe for such objection specified
in Section 8.2(h) hereof, then the completed proposed IRS Forms K-1 delivered
to each of RMH and LGH at or prior to the Closing shall be in the same form as
Combined Properties, Inc. shall have delivered to RMH and LGH within the
timeframe specified in Section 8.2(h); and provided further, that if Combined
Properties, Inc. shall not have delivered to RMH and LGH proposed forms of such
IRS Forms K-1 within the timeframe specified for such delivery in Section
8.2(h) hereof, or RMH and LGH shall have provided written notice to Dart that
they object to such proposed forms within the timeframe for such objection
specified in Section 8.2(h) hereof, then the completed proposed IRS Forms K-1
delivered to each of RMH and LGH at or prior to the Closing shall be in a form
satisfactory to RMH and LGH.
(h) FAIRNESS OPINION. On or before Dart's execution and delivery of
this Agreement, RMH, GGH and LGH shall have received a copy of the draft
Fairness Opinion provided to Dart by WP&Co., certified by an officer of Dart
that such copy is a true copy of the Fairness Opinion as of the date hereof.
On the Closing Date, RMH, GGH and LGH shall have received a copy of the final
Fairness Opinion provided to Dart by WP&Co. (together with a copy of the
written materials presented by WP&Co. to Dart's Board of Directors in support
of the Fairness Opinion) certified by an officer of Dart that such copy is a
true copy of the final Fairness Opinion as of the Closing Date (it being
understood that the final Fairness Opinion will be issued on or prior to the
execution and delivery of this Agreement and will not be re-issued as of the
Closing Date); provided that the receipt by RMH, GGH and LGH of a copy of the
final Fairness Opinion shall be subject to their letter agreement entered into
with WP&Co. dated on or about July 12, 1997, and the receipt by RMH, GGH and
LGH of a copy of the materials supporting the Fairness Opinion shall be subject
to their execution and delivery to WP&Co. of a comparable letter agreement,
satisfactory to WP&Co., relating to such materials.
24
<PAGE> 29
(i) SOLVENCY CERTIFICATE. Each of RMH, GGH and LGH shall have received
from Dart, Crown Books and Trak Auto a duly executed solvency certificate, in
the form of Exhibit L.
(j) PAYMENT UNDER PLANS OF REORGANIZATION. RMH and LGH shall have
received their pro rata portion of the $4,400,000 pursuant to the terms of the
Plans of Reorganization proposed by the debtors in the Bankruptcy Proceedings
or otherwise from Dart.
(k) HHH ESCROW ACCOUNT. On or before the execution and delivery of
this Agreement by Dart, Dart shall have delivered to GGH a duly executed
acknowledgment and agreement, effective as of the date made, not to withdraw
prior to February 28, 1998 the funds contained in the Escrow Account created
pursuant to the Escrow Agreement dated as of October 6, 1995, by and among
Dart, RSH and Settlement Corp. in the form of Exhibit M.
(l) CABOT MORGAN ESCROW ACCOUNT. On or before the execution and
delivery of this Agreement by Dart, Dart shall have delivered to RMH and LGH a
duly executed acknowledgment, effective as of the date made, in the form of
Exhibit N.
(m) CERTIFIED RSH SETTLEMENT DOCUMENTS. Dart shall have delivered to
RMH, GGH and LGH copies of the RSH Settlement Agreement, the RSH First
Supplemental Agreement and (if Dart shall have entered into the HHH Settlement
Agreement and such HHH Settlement Agreement shall not have been terminated) the
RSH Second Supplemental Agreement, certified by an officer of Dart that such
documents are accurate copies of the RSH Settlement Agreement, the RSH First
Supplemental Agreement and (if applicable) the RSH Second Supplemental
Agreement in effect as of the Closing.
(n) RSH CONSENT. RSH shall have consented in writing to the
transactions contemplated by this Agreement, such consent to be substantially
in the form of Exhibit K.
(o) DISMISSALS OF CERTAIN LITIGATION. An order of the Court shall have
been entered dismissing with prejudice or, if the parties agree that the action
may be dismissed by stipulation, stipulations shall have been filed that are
executed by all parties to each litigation dismissing with prejudice (i) the
Section 225 Lawsuit; (ii) the Options Lawsuit; (iii) the Release Lawsuit; (iv)
the claims between the parties in the Pennsy Lawsuit; (v) the individual claims
stated in the RMH Derivative Lawsuit; and (vi) the Attorneys' Fees Claim.
(p) DISMISSAL OF DERIVATIVE CLAIMS. An order of the Delaware Court of
Chancery shall have been entered dismissing the derivative claims in the RMH
Derivative Lawsuit, with or without prejudice.
(q) HHH CONSENT. If, at the time of the Closing, Dart shall have
entered into an HHH Settlement Agreement and such HHH Settlement Agreement
shall not have terminated, then HHH shall have consented to the transactions
contemplated by this Agreement, which
25
<PAGE> 30
consent may be evidenced in the HHH Settlement Agreement or by separate written
consent executed by HHH, but which, in any event, must be similar in substance
to the consent set forth on Exhibit K.
(r) HHH RELEASE. If, at the time of the Closing, Dart shall have
entered into an HHH Settlement Agreement and such HHH Settlement Agreement
shall not have terminated, then LGH shall have received a release signed by HHH
in the form of Exhibit O.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF DART COMPANIES
Dart (as to itself and each of the other Dart Companies) and each of the
other Dart Companies (as to itself alone and, for the avoidance of doubt, not
for or in respect of any other Dart Company, including Dart) represents and
warrants to each of RMH, GGH and LGH, as of the date hereof and as of the
Closing Date, that:
4.1 ORGANIZATION AND AUTHORITY; ENFORCEABILITY
Such Dart Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
power and authority to own and operate its properties, to carry on its business
as now being conducted, to execute and deliver this Agreement and each of the
other Settlement Documents to which it is a party, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. Such Dart Company is duly qualified and in good standing in the
State of Maryland and in each other jurisdiction where the nature of its
business or the location of its properties requires such entity to be so
qualified, except where the failure to be so qualified would not have a
Material Adverse Effect. The execution and delivery by such Dart Company of
this Agreement and each of the other Settlement Documents to which it is a
party, the performance by such Dart Company of its obligations hereunder and
thereunder and the consummation by such Dart Company of the transactions
contemplated hereby and thereby have been duly and validly authorized and
approved by all necessary actions on the part of such Dart Company and (if any)
the Voting Trustee, none of which actions have been modified or rescinded and
all of which actions remain in full force and effect. This Agreement and each
of the other Settlement Documents has been duly executed and delivered by a
duly authorized officer of such Dart Company which is a party thereto, and this
Agreement and each of such other Settlement Documents constitutes a valid and
binding obligation of such Dart Company, enforceable against it in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and by general equitable principles.
26
<PAGE> 31
4.2 ABSENCE OF CONFLICT
Except as set forth in Schedule 4.2 of the Dart Disclosure Exhibit, the
execution, delivery and performance by such Dart Company of this Agreement and
each of the other Settlement Documents to which it is a party do not, and will
not, as to such Dart Company: (a) violate its certificate of incorporation or
bylaws; (b) violate any applicable Governmental Requirement or any order,
judgment, writ, decree, decision or award of any Governmental Authority or
arbitrator, the violation of which could reasonably be expected to have a
Material Adverse Effect; (c) breach, violate or conflict with any provision of,
give rise to any right of acceleration of any obligation under or constitute a
default under (or an event which, with the giving of notice or lapse of time,
or both, would give rise to such a right or constitute such a default), or
require the consent or waiver of any other party to, any mortgage, lease, note,
contract, agreement or instrument to which such Dart Company is a party or by
which any of its properties may be bound or affected which could reasonably be
expected to have a Material Adverse Effect; or (d) result in the creation or
imposition of any Lien (as hereinafter defined) on any of its assets, or result
in or permit the acceleration of any of its indebtedness or other obligations
pursuant to any of the foregoing which Lien or acceleration could reasonably be
expected to have a Material Adverse Effect.
4.3 NO CONSENTS
Except as set forth in Schedule 4.3 of the Dart Disclosure Exhibit, no
consent, waiver, release, approval, order or authorization of, or notification
to, or determination of, or declaration, filing or registration with, or other
action by, any Person (as hereinafter defined) is required to be made or
obtained in connection with the execution, delivery or performance by such Dart
Company of this Agreement or any of the other Settlement Documents to which it
is a party or the consummation by it of the transactions contemplated hereby or
thereby.
4.4 LITIGATION
Except as described in Schedule 4.4 of the Dart Disclosure Exhibit, (a)
there are no actions, suits or proceedings, or, to the knowledge of such Dart
Company, investigations or claims pending or, to the knowledge of such Dart
Company, threatened against the Dart Companies that relate to any of the
transactions contemplated by this Agreement and the other Settlement Documents,
and that, if successful, could restrain or prohibit the consummation of such
transactions, and (b) none of the Dart Companies is subject to any order,
judgment, writ, decree, decision or award that limits, restricts or might
otherwise adversely affect the ability of such Dart Company to perform its
obligations under this Agreement or the other Settlement Documents.
4.5 LIABILITIES
Except as described in Schedule 4.5 of the Dart Disclosure Exhibit, to
the knowledge of Dart, there is no liability, commitment or obligation of the
Dart Companies, that limits,
27
<PAGE> 32
restricts or might otherwise adversely affect the ability of the Dart Companies
to perform any of their obligations under this Agreement or the other
Settlement Documents.
4.6 INVESTMENT COMPANY ACT
Such Dart Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
4.7 NO BANKRUPTCY
Such Dart Company does not have the present intention to (a) apply for,
or consent in writing to, the appointment of a receiver, trustee or liquidator,
(b) file a voluntary petition seeking relief under the U.S. Bankruptcy Code, or
be unable, or admit in writing its inability, to pay its debts as they become
due or (c) make a general assignment for the benefit of creditors.
4.8 BROKERAGE
The negotiations relevant to this Agreement have been carried on by the
Dart Companies directly with RMH, GGH and LGH and there are no claims for
finder's fees or other like payments in connection with this Agreement or the
transactions contemplated hereby, except that Dart has engaged WP&Co. to render
financial advisory services in connection with the transactions contemplated
hereby and Dart shall be solely responsible for all amounts due WP&Co. as a
result thereof.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF RMH
RMH represents and warrants to each of the Dart Companies, as of the date
hereof and as of the Closing Date, that:
5.1 AUTHORIZATION
This Agreement has been duly executed and delivered by RMH in his
capacity as trustee under each of the RMH Children Trusts and the execution,
delivery and performance thereof have been duly authorized by all action
necessary under each of the RMH Children Trusts.
5.2 BINDING EFFECT
This Agreement and the other Settlement Documents to which RMH is a party
(including in his capacity as trustee of the RMH Children Trusts) are valid and
binding obligations of RMH and the RMH Children Trusts (as applicable),
enforceable against RMH and the RMH Children Trusts (as applicable) in
accordance with their respective terms,
28
<PAGE> 33
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors generally and by general equitable
principles.
5.3 ABSENCE OF CONFLICT
Except as set forth in Schedule 5.3 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, the execution, delivery and performance by RMH of this
Agreement and each of the other Settlement Documents to which he is a party
(including in his capacity as trustee of the RMH Children Trusts) do not, and
will not, (a) violate any applicable Governmental Requirement or any order,
judgment, writ, decree, decision or award of any Governmental Authority or
arbitrator by which RMH or the RMH Children Trusts is bound, the violation of
which could reasonably be expected to have a Material Adverse Effect, (b)
breach, violate or conflict with any provision of, give rise to any right of
acceleration of any obligation under or constitute a default under (or an event
which, with the giving of notice or lapse of time, or both, would give rise to
such a right or constitute such a default), or require the consent or waiver of
any other party to, any mortgage, lease, note, contract, agreement or
instrument to which he is a party (including in his capacity as trustee of the
RMH Children Trusts) or by which any of his or its properties may be bound or
affected which could reasonably be expected to have a Material Adverse Effect;
(c) result in the creation or imposition of any Lien on the RMH Interests other
than any Lien created by this Agreement or any other Settlement Document; or
(d) result in the creation or imposition of any Lien on any of his or its
assets, or result in or permit the acceleration of any of his or its
indebtedness or other obligations pursuant to any of the foregoing, which Lien
or acceleration could reasonably be expected to have a Material Adverse Effect.
5.4 NO CONSENTS
Except as set forth in Schedule 5.4 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, no consent, waiver, release, approval, order or
authorization of, or notification to, or determination of, or declaration,
filing or registration with, or other action by, any Person is required to be
made or obtained by RMH in connection with the execution, delivery and
performance by RMH of this Agreement or any of the other Settlement Documents
to which RMH is a party (including in his capacity as trustee of the RMH
Children Trusts) or the consummation by RMH and the RMH Children Trusts of the
transactions contemplated hereby or thereby.
5.5 SHARES; OPTIONS; DART/SFW RIGHTS
(a) Schedule 5.5(a) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter sets forth the number of shares and share certificate numbers for each
share of the RMH Class B Shares and the RMH Class A Shares. Except as set
forth in Schedule 5.5(a) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter, RMH has, and at all times until such time as conveyed to the Dart
Companies in accordance with this Agreement and the other Settlement Documents,
will have, good and marketable title to all of the RMH Class B Shares, the RMH
Class A Shares, and the RMH Interests, each as set forth on
29
<PAGE> 34
Schedule 5.5(a) to the RGL Disclosure Exhibit or the RGL Disclosure Letter,
free and clear of any Liens (except for those Liens set forth on Schedule
5.5(a) to the RGL Disclosure Exhibit or the RGL Disclosure Letter or otherwise
known to Dart), and RMH has not taken and will not take any action that could
give rise to any such Lien. RMH does not own and does not have any Other Dart
Company Rights, except for the rights and options to acquire shares of the
capital stock in the Dart Companies set forth on Schedule 5.5(b) to the RGL
Disclosure Exhibit or the RGL Disclosure Letter, Schedule 8.2(d) to the RGL
Disclosure Exhibit or the RGL Disclosure Letter and in those rights expressly
set forth in the Settlement Documents.
(b) RMH and the RMH Children Trusts (as applicable) own, and will at
all times prior to the termination thereof or, in the case of options for
shares of Dart/SFW, the sale thereof to Dart, own good and marketable title to
all the stock options in the Dart Companies set forth on Schedule 5.5(b) to the
RGL Disclosure Exhibit or the RGL Disclosure Letter, free and clear of any
Liens (except for those Liens set forth on Schedule 5.5(b) to the RGL
Disclosure Exhibit or the RGL Disclosure Letter or otherwise known to Dart),
and neither RMH nor the RMH Children Trusts has taken nor will they take any
action that could give rise to any such Lien. Such options constitute all
stock options owned by or granted to RMH to acquire shares of stock in the Dart
Companies.
5.6 LIABILITIES
Except as described in Schedule 5.6 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, to the knowledge of RMH, there is no liability,
commitment or obligation of RMH, the RMH Children Trusts, or any partnership of
which RMH or the RMH Children Trusts is or has been a general partner, that
limits, restricts or might otherwise adversely affect the ability of RMH or the
RMH Children Trusts to perform any of their obligations under this Agreement or
the other Settlement Documents.
5.7 LITIGATION
Except as described in Schedule 5.7 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, (a) there are no actions, suits or proceedings, or, to
the knowledge of RMH, investigations or claims pending or, to the knowledge of
RMH, threatened against RMH or the RMH Children Trusts, or involving any of the
RMH Interests that affect or could affect any of the RMH Interests in any
respect, or that relate to any of the transactions contemplated by this
Agreement and the other Settlement Documents, and that, if successful, could
restrain or prohibit the consummation of such transactions, and (b) none of
RMH, the RMH Children Trusts or any of the RMH Interests is subject to any
order, judgment, writ, decree, decision or award that limits, restricts or
might otherwise adversely affect the ability of RMH or the RMH Children Trusts
to perform any of their obligations under this Agreement or the other
Settlement Documents.
30
<PAGE> 35
5.8 EXISTING RMH COSTS AGAINST DART, ET AL.
To the best of his knowledge, RMH has no Costs against or with respect to
any of the Dart Companies or their respective successors, assigns and
controlled affiliates, and their respective present and former officers,
directors, employees, attorneys and agents for indemnification or reimbursement
other than those Costs assigned to Dart or otherwise satisfied in full
hereunder.
5.9 NO BANKRUPTCY
Neither RMH nor either of the RMH Children Trusts has the present
intention to (a) apply for, or consent in writing to, the appointment of a
receiver, trustee or liquidator, (b) file a voluntary petition seeking relief
under the U.S. Bankruptcy Code, or be unable, or admit in writing his or its
inability, to pay his or its debts as they become due or (c) make a general
assignment for the benefit of creditors.
5.10 BROKERAGE
The negotiations relevant to this Agreement have been carried on by RMH
directly with the Dart Companies and there are no claims for finder's fees or
other like payments in connection with this Agreement or the transactions
contemplated hereby as a result of RMH's actions.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF GGH
GGH represents and warrants to the Dart Companies, as of the date hereof
and as of the Closing Date, that:
6.1 BINDING EFFECT
This Agreement and the other Settlement Documents to which GGH is a party
are valid and binding obligations of GGH, enforceable against GGH in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors
generally and by general equitable principles.
6.2 ABSENCE OF CONFLICT
Except as set forth in Schedule 6.2 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, the execution, delivery and performance by GGH of this
Agreement and each of the other Settlement Documents to which she is a party do
not, and will not, (a) violate any applicable Governmental Requirement or any
order, judgment, writ, decree, decision or award of any Governmental Authority
or arbitrator by which GGH is bound, the violation of which could reasonably be
expected to have a Material Adverse Effect, (b) breach, violate or conflict
with any provision of, give rise to any right of acceleration of any obligation
under or constitute a default under (or an event which, with the giving of
notice or
31
<PAGE> 36
lapse of time, or both, would give rise to such a right or constitute such a
default), or require the consent or waiver of any other party to, any mortgage,
lease, note, contract, agreement or instrument to which she is a party or by
which any of her properties may be bound or affected which could reasonably be
expected to have a Material Adverse Effect; (c) result in the creation or
imposition of any Lien on the GGH Interests other than any Lien created by this
Agreement or any other Settlement Documents; or (d) result in the creation or
imposition of any Lien on any of her assets, or result in or permit the
acceleration of any of her indebtedness or other obligations pursuant to any of
the foregoing, which Lien or acceleration could reasonably be expected to have
a Material Adverse Effect.
6.3 NO CONSENTS
Except as set forth in Schedule 6.3 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, no consent, waiver, release, approval, order or
authorization of, or notification to, or determination of, or declaration,
filing or registration with, or other action by, any Person is required to be
made or obtained by GGH in connection with the execution, delivery and
performance by GGH of this Agreement or any of the other Settlement Documents
to which GGH is a party or the consummation by GGH of the transactions
contemplated hereby or thereby.
6.4 SHARES; OPTIONS; DART/SFW RIGHTS
(a) Schedule 6.4(a) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter sets forth the number of shares and share certificate numbers for each
share of the GGH Class B Shares and the GGH Class A Shares. Except as set
forth in Schedule 6.4(a) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter, GGH has, and at all times until such time as conveyed to the Dart
Companies in accordance with this Agreement and the other Settlement Documents,
will have, good and marketable title to all of the GGH Class B Shares, the GGH
Class A Shares and the GGH Interests, each as set forth on Schedule 6.4(a) to
the RGL Disclosure Exhibit or the RGL Disclosure Letter, free and clear of any
Liens (except for those Liens set forth on Schedule 6.4(a) to the RGL
Disclosure Exhibit or the RGL Disclosure Letter or otherwise known to Dart),
and GGH has not taken and will not take any action that could give rise to any
such Lien. GGH does not own and does not have any Other Dart Company Rights,
except for the rights and options to acquire shares of the capital stock in the
Dart Companies set forth on Schedule 6.4(b) to the RGL Disclosure Exhibit or
the RGL Disclosure Letter, Schedule 8.2(d) to the RGL Disclosure Exhibit or the
RGL Disclosure Letter and in those rights expressly set forth in the Settlement
Documents.
(b) GGH owns, and will at all times prior to the termination thereof
or, in the case of options for shares of Dart/SFW, the sale thereof to Dart,
own good and marketable title to all the stock options in the Dart Companies
set forth on Schedule 6.4(b) to the RGL Disclosure Exhibit or the RGL
Disclosure Letter, free and clear of any Liens (except for those Liens set
forth on Schedule 6.4(b) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter or otherwise known to Dart), and GGH has not taken and will not take any
32
<PAGE> 37
action that could give rise to any such Lien. Such options constitute all
stock options owned by or granted to GGH to acquire shares of stock in the Dart
Companies.
6.5 LIABILITIES
Except as described in Schedule 6.5 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, to the knowledge of GGH, there is no liability,
commitment or obligation of GGH, or any partnership of which GGH is or has been
a general partner, that limits, restricts or might otherwise adversely affect
the ability of GGH to perform any of her obligations under this Agreement or
the other Settlement Documents.
6.6 LITIGATION
Except as described in Schedule 6.6 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, (a) there are no actions, suits or proceedings, or, to
the knowledge of GGH, investigations or claims pending or, to the knowledge of
GGH, threatened against GGH, or involving any of the GGH Interests that affect
or could affect any of the GGH Interests in any respect, or that relate to any
of the transactions contemplated by this Agreement and the other Settlement
Documents, and that, if successful, could restrain or prohibit the consummation
of such transactions, and (b) none of GGH or any of the GGH Interests is
subject to any order, judgment, writ, decree, decision or award that limits,
restricts or might otherwise adversely affect the ability of GGH to perform any
of her obligations under this Agreement or the other Settlement Documents.
6.7 EXISTING GGH COSTS AGAINST DART, ET AL.
To the best of her knowledge, GGH has no Costs for indemnification or
reimbursement against or with respect to any of the Dart Companies or their
respective successors, assigns and controlled affiliates, and their respective
present and former officers, directors, employees, attorneys and agents other
than those Costs which are assigned to Dart or otherwise satisfied in full
under this Agreement.
6.8 NO BANKRUPTCY
GGH has no present intention to (a) apply for, or consent in writing to,
the appointment of a receiver, trustee or liquidator, (b) file a voluntary
petition seeking relief under the U.S. Bankruptcy Code, or be unable, or admit
in writing her inability, to pay her debts as they become due or (c) make a
general assignment for the benefit of creditors.
6.9 BROKERAGE
The negotiations relevant to this Agreement have been carried on by RMH,
on behalf of GGH, directly with the Dart Companies and there are no claims for
finder's fees or other like payments in connection with this Agreement or the
transactions contemplated hereby as a result of RMH's or GGH's actions.
33
<PAGE> 38
ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF LGH
LGH represents and warrants to the Dart Companies, as of the date hereof
and as of the Closing Date, that:
7.1 BINDING EFFECT
This Agreement and the other Settlement Documents to which LGH is a party
are valid and binding obligations of LGH, enforceable against LGH in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors
generally and by general equitable principles.
7.2 ABSENCE OF CONFLICT
Except as set forth in Schedule 7.2 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, the execution, delivery and performance by LGH of this
Agreement and each of the other Settlement Documents to which she is a party do
not, and will not, (a) violate any applicable Governmental Requirement or any
order, judgment, writ, decree, decision or award of any Governmental Authority
or arbitrator by which LGH is bound, the violation of which could reasonably be
expected to have a Material Adverse Effect, (b) breach, violate or conflict
with any provision of, give rise to any right of acceleration of any obligation
under or constitute a default under (or an event which, with the giving of
notice or lapse of time, or both, would give rise to such a right or constitute
such a default), or require the consent or waiver of any other party to, any
mortgage, lease, note, contract, agreement or instrument to which she is a
party or by which any of her properties may be bound or affected which could
reasonably be expected to have a Material Adverse Effect; (c) result in the
creation or imposition of any Lien on the LGH Interests other than any Lien
created by this Agreement or any other Settlement Documents; or (d) result in
the creation or imposition of any Lien on any of her assets, or result in or
permit the acceleration of any of her indebtedness or other obligations
pursuant to any of the foregoing, which Lien or acceleration could reasonably
be expected to have a Material Adverse Effect.
7.3 NO CONSENTS
Except as set forth in Schedule 7.3 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, no consent, waiver, release, approval, order or
authorization of, or notification to, or determination of, or declaration,
filing or registration with, or other action by, any Person is required to be
made or obtained by LGH in connection with the execution, delivery and
performance by LGH of this Agreement or any of the other Settlement Documents
to which LGH is a party or the consummation by LGH of the transactions
contemplated hereby or thereby.
34
<PAGE> 39
7.4 SHARES; OPTIONS; DART/SFW RIGHTS
(a) Schedule 7.4(a) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter sets forth the number of shares and share certificate numbers for each
share of the LGH Class B Shares and the LGH Class A Shares. Except as set
forth in Schedule 7.4(a) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter, LGH has, and at all times until such time as conveyed to the Dart
Companies in accordance with this Agreement and the other Settlement Documents,
will have, good and marketable title to all of the LGH Class B Shares, the LGH
Class A Shares, and the LGH Interests, each as set forth on Schedule 7.4(a) to
the RGL Disclosure Exhibit or the RGL Disclosure Letter, free and clear of any
Liens (except for those Liens set forth on Schedule 7.4(a) to the RGL
Disclosure Exhibit or the RGL Disclosure Letter or otherwise known to Dart),
and LGH has not taken and will not take any action that could give rise to any
such Lien. LGH does not own and does not have any rights to purchase the
common stock of Crown Books, any rights to purchase the common stock of Trak
Auto or any Other Dart Company Rights except for the rights and options to
acquire shares of the capital stock in the Dart Companies set forth on Schedule
7.4(b) to the RGL Disclosure Exhibit or the RGL Disclosure Letter, Schedule
8.2(d) to the RGL Disclosure Exhibit or the RGL Disclosure Letter and in those
rights expressly set forth in the Settlement Documents.
(b) LGH owns, and will at all times prior to the termination thereof
or, in the case of options for shares of Dart/SFW, the sale thereof to Dart,
own good and marketable title to all the stock options in the Dart Companies
set forth on Schedule 7.4(b) to the RGL Disclosure Exhibit or the RGL
Disclosure Letter, free and clear of any Liens (except for those Liens set
forth on Schedule 7.4(b) to the RGL Disclosure Exhibit or the RGL Disclosure
Letter or otherwise known to Dart), and LGH has not taken and will not take any
action that could give rise to any such Lien. Such options constitute all
stock options owned by or granted to LGH to acquire shares of stock in the Dart
Companies.
7.5 LIABILITIES
Except as described in Schedule 7.5 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, to the knowledge of LGH, there is no liability,
commitment or obligation of LGH, or any partnership of which LGH is or has been
a general partner, that limits, restricts or might otherwise adversely affect
the ability of LGH to perform any of her obligations under this Agreement or
the other Settlement Documents.
7.6 LITIGATION
Except as described in Schedule 7.6 to the RGL Disclosure Exhibit or the
RGL Disclosure Letter, (a) there are no actions, suits or proceedings, or, to
the knowledge of LGH, investigations or claims pending or, to the knowledge of
LGH, threatened against LGH, or involving any of the LGH Interests that affect
or could affect any of the LGH Interests in any respect, or that relate to any
of the transactions contemplated by this Agreement and the other Settlement
Documents, and that, if successful, could restrain or
35
<PAGE> 40
prohibit the consummation of such transactions, and (b) none of LGH or any of
the LGH Interests is subject to any order, judgment, writ, decree, decision or
award that limits, restricts or might otherwise adversely affect the ability of
LGH to perform any of her obligations under this Agreement or the other
Settlement Documents.
7.7 EXISTING LGH COSTS AGAINST DART, ET AL.
To the best of her knowledge, LGH has no Costs for indemnification or
reimbursement against or with respect to any of the Dart Companies or their
respective successors, assigns and controlled affiliates, and their respective
present and former officers, directors, employees, attorneys and agents other
than those which are assigned to Dart or otherwise satisfied in full under this
Agreement.
7.8 NO BANKRUPTCY
LGH has no present intention to (a) apply for, or consent in writing to,
the appointment of a receiver, trustee or liquidator, (b) file a voluntary
petition seeking relief under the U.S. Bankruptcy Code, or be unable, or admit
in writing her inability, to pay her debts as they become due or (c) make a
general assignment for the benefit of creditors.
7.9 BROKERAGE
The negotiations relevant to this Agreement have been carried on by RMH,
on behalf of LGH, directly with the Dart Companies and there are no claims for
finder's fees or other like payments in connection with this Agreement or the
transactions contemplated hereby as a result of RMH's or LGH's actions.
ARTICLE 8. COVENANTS
8.1 RMH, GGH AND LGH COVENANTS
(a) SECURITIES RESTRICTIONS. For a period commencing on the date
hereof and continuing through the fifth anniversary thereof or, if earlier, any
termination of this Agreement pursuant to Section 10.1, and provided that there
is no payment default hereunder by any of the Dart Companies, none of RMH, GGH
or LGH, nor any spouse or child (other than RSH) of any of RMH, GGH or LGH
shall, singly, through a partnership or otherwise as part of any group,
directly or indirectly:
(i) ACQUISITION OF RESTRICTED SECURITIES. Purchase, acquire or
own, or offer or agree to purchase, acquire or own, any Dart Restricted
Securities. Notwithstanding the prohibitions contained in this Section
8.1(a)(i) with respect to the acquisition or ownership of Dart Restricted
Securities:
36
<PAGE> 41
(A) In the event that any of RMH, GGH or LGH acquires any
Dart Restricted Securities as a result of an acquisition by any
Dart Company of a Dart Acquisition Company by an exchange offer or
otherwise, then such individual may hold such Dart Restricted
Securities for a period not in excess of two years, during which
period such individual shall dispose of all such Dart Restricted
Securities;
(B) In the event any of RMH, GGH or LGH acquires any Dart
Restricted Securities as a result of an acquisition by any Dart
Company of a business organization that is not a Dart Acquisition
Company or the securities of such a business organization by an
exchange offer or otherwise, then such individual may hold such
Dart Restricted Securities indefinitely;
(C) In the event that i) any of RMH, GGH or LGH receive
Class A Common Stock of Dart from HHH, or ii) any of RMH, GGH or
LGH inherit Class A Common Stock of Dart from HHH, then such
individual may hold such Class A Common Stock for a period not in
excess of two years, during which period such individual shall
dispose of all such Class A Common Stock and shall not vote such
shares (if such shares are granted the right to vote on any matter)
other than voting such shares with the recommendation of management
of the Board of Directors of Dart as expressed in any solicitation
of proxies;
(D) In the event that i) GGH receives Class B Common Stock
of Dart from HHH, or ii) RMH or LGH inherit Class B Common Stock of
Dart from HHH, then such individual may hold such Class B Common
Stock for a period not in excess of one year, during which period
such individual must offer to sell such Class B Common Stock to
Dart or its designee, and Dart or its designee may, but shall in no
event be obligated to, call such Class B Common Stock, in each
event at a per share purchase price equal to the greater of (x)
$100, and (y) 110% of the average per share price for Class A
Common Stock (based on the lower of (A) the average closing price
of the Class A Common Stock on NASDAQ (or any other national
securities exchange) for the five (5) consecutive trading days
immediately preceding the offer of such Class B Common Stock to
Dart or Dart's call of such Class B Common Stock, as the case may
be; and (B) the average of the 15 lowest closing prices of the
Class A Common Stock on NASDAQ (or any other national securities
exchange) for 15 of the 30 consecutive trading days immediately
preceding the offer of such Class B Common Stock to Dart or Dart's
call of such Class B Common Stock, as the case may be). At the
closing of any purchase by Dart or its designee of Class B Stock
from RMH, LGH or GGH pursuant to this subsection, the seller of
such Class B Stock shall sell, assign and transfer all right, title
and interest in and to such Class B Common Stock that such
individual owns, only to Dart (or its Affiliates), free and clear
of all Liens (except as set forth in Schedule 2.1A to the RGL
37
<PAGE> 42
Disclosure Exhibit or the RGL Disclosure Letter), and shall
execute, in blank, and deliver to Dart (or its designee), Class B
Assignments transferring such shares of Class B Stock to Dart (or
its designee), in exchange for cash in an amount equal to the
aforementioned purchase price. During the period in which GGH, RMH
or LGH hold any such shares of Class B Common Stock, they shall not
vote such shares, other than voting such shares with the
recommendation of management of the Board of Directors of Dart as
expressed in any solicitation of proxies;
(E) Any of RMH, GGH or LGH may (directly or indirectly
through another bidder) acquire or offer to acquire (A) shares of
the capital stock of Dart/SFW, SFW Holding or SFW or (B) shares of
any Dart Company or any Dart Acquisition Company that has
initiated, or for whom Dart has initiated, an active process for
the sale of such company.
(F) Nothing contained in this Section 8.1(a)(i) shall
require disposal of i) securities representing five percent (5%) or
less of the voting securities of a Dart Acquisition Company owned
at the time any such business organization becomes a Dart
Acquisition Company, ii) any securities in any Dart Company held by
any of RMH, GGH or LGH on the date hereof, any securities in any
Dart Company acquired by Pharmor, Inc., or iii) any securities in
any Dart Company obtained by any of RMH, GGH or LGH as a
consequence of exercising rights and remedies against any Dart
Company following a breach of such Dart Company's obligations under
this Agreement or any of the other Settlement Documents.
(ii) SOLICITATION. Solicit or encourage any other Person to
solicit, proxies or become a Participant or otherwise engage in any
solicitation in opposition to a recommendation of a majority of the
directors of any Dart Company or any Dart Acquisition Company with
respect to any matter.
(iii) STOCKHOLDER PROPOSALS. Initiate, propose or otherwise
solicit stockholders for the approval of one or more stockholder
proposals with respect to any Dart Company or any Dart Acquisition
Company, as described in Rule 14a-8 under the Exchange Act.
(iv) ACQUISITION OF CONTROL. Except as permitted pursuant to
Section 8.1(a)(i), acquire the control of any Dart Company or any Dart
Acquisition Company or directly or indirectly participate in or encourage
the formation of any group seeking to acquire or affect control of Dart,
Crown Books, Trak Auto or any Dart Acquisition Company.
(v) ENCOURAGEMENT OF OTHERS. Encourage any Person to engage in
any of the actions covered by this Section 8.1(a).
38
<PAGE> 43
(vi) ACTIONS IN OTHER CAPACITIES. Acting in any capacity,
including as a director, officer, agent, trustee or other similar
position, for or with any other Person, and including, RMH in his
capacity as Chairman and Chief Executive Officer of Pharmor, Inc.,
initiate, solicit, approve or encourage such other Person to take any
action which would violate the covenants contained in this Section 8.1(a)
if RMH, GGH or LGH were to take such action personally. Each of RMH, GGH
and LGH shall abstain from voting as a director with respect to any such
action. Notwithstanding anything to the contrary in this Section
8.1(a)(vi), nothing herein is intended to or shall be construed as
prohibiting RMH from taking any action if RMH's failure to take such
action would (A) violate a fiduciary duty RMH currently has in his
capacity as Chairman and Chief Executive Officer of Pharmor, Inc., or (B)
constitute a breach of RMH's employment agreement with Pharmor, Inc. as
in effect on the date of this Agreement.
(b) TAX REPORTING. Except as required by law, none of RMH, GGH or LGH
shall file any tax return or report with the Internal Revenue Service or any
other Governmental Authority or otherwise take any position in connection
therewith that (i) is inconsistent with the Forms W-2 and 1099 that were
delivered by Dart pursuant to Section 3.2(g) or (ii) characterizes any payments
made under this Agreement as "parachute payments" within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended.
8.2 DART COMPANY COVENANTS
(a) FINANCING. From the date hereof through the Closing Date, Dart
shall use reasonable efforts to obtain the release of funds from the SFW Escrow
and, if requested from time to time by any of RMH, GGH or LGH, shall inform
RMH, GGH or LGH of the progress of such efforts.
(b) NEGATIVE CAPITAL ACCOUNTS.
(i) Subject to the terms of this Section 8.2(b), and except as
required by law, none of the Dart Companies shall enter into any
transaction, including without limitation, the purchase, sale, lease,
exchange, foreclosure or other disposition of property, joint ventures,
financing, refinancing (including modifications) or guaranteeing
obligations or notes, conversion of indebtedness from non-recourse to
recourse obligations, curtailment of the principal balance of any
non-recourse indebtedness (other than in accordance with the loan
documents therefor), liquidation, dissolution or bankruptcy, or take any
other action, directly or indirectly, that could reasonably be expected
by such Dart Company, under the facts and circumstances then known to it,
to, and that would, with respect to the partnerships or properties set
forth on Schedule 8.2(b) to the RGL Disclosure Exhibit or the RGL
Disclosure Letter (but excluding the Rolling Valley Mall and Maryland
City Plaza, if Dart makes the RSH/HHH Loan) (A) cause RMH or LGH to
recognize taxable income in such person's capacity as a partner with
regard to any interests owned by such person in
39
<PAGE> 44
such partnerships or properties (without regard to any tax attributes
such person may have that are unrelated to such partnerships) or (B)
reduce the economic interest of any of RMH or LGH in any such
partnerships or properties (without regard to any tax attributes such
person may have that are unrelated to such partnerships); provided,
however, that the Dart Companies shall not be prohibited by this Section
8.2(b) from entering into any transaction or taking any other action with
respect to any property not set forth on Schedule 8.2(b) to the RGL
Disclosure Exhibit or the RGL Disclosure Letter; and provided further
that (x) Dart's liability to RMH under this Section 8.2(b) with respect
to any such partnership or property shall not exceed the positive product
of $17,500,000 multiplied by the highest marginal income rate then
applicable to RMH, and (y) Dart's liability to LGH under this Section
8.2(b) shall not exceed the product of $17,500,000 multiplied by the
highest marginal income tax rate then applicable to LGH.
(ii) Except to the extent of the express limitations set forth in
Section 8.2(b)(iv) below, nothing contained in Section 8.2(b)(i) shall in
any way limit (or be deemed or construed to limit) the exercise of any
rights and remedies any Dart Company may now or hereafter have against
HHH and RSH as guarantors or obligors or otherwise, including Dart's
ability to liquidate, charge or otherwise seek relief with respect to the
tangible or intangible rights of HHH or RSH to any interests in any
partnerships or properties set forth on Schedule 8.2(b) to the RGL
Disclosure Exhibit or the RGL Disclosure Letter.
(iii) Nothing contained in Section 8.2(b)(i) shall in any way limit
(or be deemed or construed to limit) the exercise of any rights and
remedies any Dart Company may now or hereafter have or any action that
any Dart Company may now or hereafter take, (A) as lessee to or tenant of
such partnerships or properties held by such partnerships or (B) as a
party to any legal or administrative proceeding in which it is named as a
defendant, respondent, cross-defendant or cross-respondent, garnishee,
or a party impleaded or interpleaded through third-party practice, or
(C) as a respondent to any compulsory legal process, or (D) in compliance
with any judicial or administrative order of any court, administrative or
arbitral tribunal, or any Governmental Authority.
(iv) Prior to the execution of any judgments obtained on the
tangible or intangible rights of HHH or RSH to any direct or indirect
interests in any partnerships or properties set forth on Schedule 8.2(b)
to the RGL Disclosure Exhibit or the RGL Disclosure Letter (but excluding
the Rolling Valley Mall and Maryland City Plaza if Dart makes the RSH/HHH
Loan) in accordance with Section 8.2(b)(ii): (A) Dart shall, and shall
cause the other Dart Companies to, first use reasonable efforts to
satisfy any judgments against HHH or RSH through execution on interests
or property of HHH and RSH other than any direct or indirect interests of
HHH or RSH in any partnerships or properties set forth on Schedule 8.2(b)
to the RGL Disclosure Exhibit or the RGL Disclosure Letter, and (B)
second, provide fifteen (15) days' prior written notice to RMH and LGH
offering them the opportunity to satisfy any such judgment,
40
<PAGE> 45
with full rights of subrogation, on behalf of HHH or RSH. For purposes
of this Section 8.2(b)(iv) only, "reasonable efforts" shall be deemed to
have been used if a writ of execution or comparable legal process has
been issued and been returned unsatisfied within five days, and nothing
in this Section 8.2(b)(iv) shall be deemed or construed to require any
Dart Company to take any action reasonably expected to be futile or to
pursue collection efforts against any Person that is in receivership or
that is a debtor in any proceeding pursuant to Title 11 of the United
States Code.
(c) TAX REPORTING. Except as required by law, none of Dart, Crown
Books or Trak Auto shall file any tax return or report with the Internal
Revenue Service or any other Governmental Authority or otherwise take any
position in connection therewith that (i) is inconsistent with the Forms W-2
and 1099 that were delivered to each of RMH, GGH and LGH pursuant to Section
3.2(g) or (ii) characterizes any payments made under this Agreement as
"parachute payments" within the meaning of Section 280G(b)(2) of the Internal
Revenue Code of 1986, as amended.
(d) TRANSFER RESTRICTIONS. The Dart Companies shall remove all
restrictive legends on, and any stop-transfer orders with respect to, the Trak
Auto and Crown Books shares owned by any of RMH, GGH or LGH and set forth on
Schedule 8.2(d) to the RGL Disclosure Exhibit or the RGL Disclosure Letter, no
later than three days after the dismissal of the Section 225 Lawsuit as
contemplated by Section 2.2(a).
(e) SOLICITATIONS. During the five year period beginning on the
Closing Date, Dart shall deliver to RMH a copy of the form of any initial
written requests made by Dart for written submissions from prospective buyers
of Crown Books, Trak Auto, SFW or SFW Holding.
(f) ENVIRONMENTAL MATTERS. None of the Dart Companies will initiate or
encourage any other Person to initiate or seek the involvement of any
regulatory agency in either an advisory or regulatory capacity with respect to
any Environmental Claim or any other claim resulting from the failure to comply
with Environmental Laws, which claim, in either case, arises from or relates to
the properties listed on Schedule 8.2(b) to the RGL Disclosure Exhibit or the
RGL Disclosure Letter. None of the Dart Companies will cooperate with any
third persons that are not governmental agencies unless such Dart Company
reasonably determines that its failure to so cooperate would materially
disadvantage it. Notwithstanding anything to the contrary contained in this
Section 8.2(f), nothing herein shall be construed to prohibit any Dart Company
from providing any notice to, or taking any action to involve, any regulatory
agency in a manner which is required by applicable law. Furthermore, nothing
in this Agreement shall be construed to prohibit, limit or discourage any Dart
Company from conducting any environmental remediation activities with respect
to any properties owned, leased or otherwise under the control of a Dart
Company.
(g) LGH PAYMENT. If the closing of the transactions contemplated by
the HHH Settlement Agreement occurs, then on the date of such closing Dart
shall transfer to LGH the amount of $629,692. Such transfer shall represent a
payment on behalf of HHH to resolve
41
<PAGE> 46
certain LGH claims against HHH regarding the terms of a January 1990 gift made
by HHH to LGH (and represents 50% of the tax withholdings made from the payment
to LGH pursuant to Section 2.1(d)(vii) in accordance with Schedule 2.3 to the
Dart Disclosure Letter). Such transfer will not be subject to withholding, and
Dart shall not deliver to LGH a Form W-2, Form 1099 or other tax form in
connection with such transfer.
(h) FORMS K-1. If Combined Properties, Inc. delivers to each of RMH
and LGH proposed forms of IRS Forms K-1 for each of Seventy-Fifth Avenue
Limited Partnership and Trak Chicago Limited Partnership I reflecting the
transactions contemplated by the Plans of Reorganization on or before the fifth
(5th) Business Day after the date of this Agreement set forth in the first
sentence hereof, then RMH and LGH shall provide Dart with written notice,
actually received by Dart not later than the eighth (8th) Business Day after
the date of this Agreement set forth in the first sentence hereof, if they have
any objections to such proposed forms of IRS Forms K-1.
ARTICLE 9. INDEMNIFICATION
9.1 INDEMNIFICATION BY DART COMPANIES
(a) SCOPE. Subject to the terms, conditions and limitations of this
Article 9, to the extent not prohibited by Delaware law:
(i) Dart shall defend, indemnify and hold each of RMH, GGH and
LGH, and their respective agents and representatives (collectively, the
"RGL Indemnitees") harmless from and against any and all Costs asserted
against or incurred by any RGL Indemnitee arising out of or resulting
from, directly or indirectly, whether in whole or in part, any
investigation, litigation or other proceeding initiated by any Person and
challenging the validity or implementation of this Agreement, any of the
other Settlement Documents, or any of the transactions contemplated
hereby or thereby;
(ii) From and after the Closing Date, each Dart Company shall
defend, indemnify and hold the RGL Indemnitees harmless from and against
any and all Costs asserted against or incurred by any RGL Indemnitee
arising out of or resulting from, directly or indirectly, whether in
whole or in part, any transaction by, or relationship of, any RGL
Indemnitee, with such Dart Company to date as a director, officer,
employee, shareholder or agent of such Dart Company.
(iii) From and after the Closing Date, Dart shall defend,
indemnify and hold RMH and LGH (and their respective agents and
representatives) harmless from and against any and all Costs asserted
against or incurred by any of them, directly or indirectly, arising out
of or resulting from any Environmental Liability that relates to an event
that occurred or occurs or a condition that existed or exists, either
prior to, on or after the date hereof, and that arises out of or is
related to the property owned on the date hereof by Seventy-Fifth Avenue
Associates Limited Partnership and Trak Chicago Limited Partnership I.
42
<PAGE> 47
(iv) Notwithstanding the scope of the indemnification granted
pursuant to this Section 9.1(a), nothing herein shall cause any Dart
Company to defend, indemnify or hold any RGL Indemnitee harmless from or
against any Costs asserted against or incurred by any RGL Indemnitee:
(A) arising out of or resulting from, directly or
indirectly, any investigation, litigation or proceeding initiated
by any Person, or any transaction by, or relationship of, any RGL
Indemnitee, with any Dart Company, related to or in connection with
the personal taxes of such RGL Indemnitee (other than taxes against
or incurred by such RGL Indemnitee as a result of a breach by any
Dart Company of the covenant set forth at Section 8.2(b)); or
(B) arising out of or resulting from the Heads of
Agreement; provided, however, that to the extent that any third
party claims against any RGL Indemnitee arising out of the Heads of
Agreement are asserted against the RGL Indemnitees together with
indemnified claims, Dart shall, at the election of the RGL
Indemnitees, defend such claims without cost to RMH, GGH or LGH,
but, for the avoidance of doubt, Dart shall not be liable for any
liability or other Costs associated with the Heads of Agreement
claim.
(b) REAFFIRMATION OF INDEMNITY UNDER GOVERNING DOCUMENTS. Each Dart
Company hereby reaffirms any and all indemnification rights granted under the
certificate of incorporation or by-laws of such Dart Company to which any of
RMH, GGH or LGH may be entitled as a result of such individual's prior capacity
as a director, officer, employee or agent of such Dart Company.
(c) DISCHARGE OF DART INDEMNIFICATION OBLIGATIONS.
(i) At any time that the Board of Directors of Dart, after
adopting a plan of complete liquidation or after dissolution of Dart has
been authorized in accordance with Section 275 of the Delaware General
Corporation Law (or any successor or comparable statutory provision then
applicable), may determine to pay a liquidating distribution to the
shareholders of Dart (the "Liquidating Distribution"), then Dart may, at
its election in its sole discretion, after providing notice to RMH, GGH
and LGH in the same manner and at the same time as any notice of
liquidation provided to Dart's shareholders, simultaneously with the
payment of such Liquidating Distribution, deposit into the Escrow Fund
(or a New Escrow Fund, as provided below, if the Escrow Fund has
terminated as of the date of such deposit) an amount equal to the
"Liquidating Payment Amount" (as defined and calculated below). The date
of payment of such Liquidating Distribution (or the initial installment
thereof, if made in more than one payment) and the simultaneous deposit
of the Liquidating Payment Amount into the Escrow Fund (or a New Escrow
Fund) shall hereinafter be referred to as the "Liquidation Date." If the
Escrow Fund has terminated prior to the Liquidation Date, then Dart shall
enter into a new Escrow Agreement, substantially in
43
<PAGE> 48
the form attached hereto as Exhibit D, pursuant to which Dart will create
a new account with the Indemnification Escrow Agent into which Dart would
deposit the Liquidating Payment Amount (a "New Escrow Fund"). Upon such
payment, the term of the Escrow Fund would be extended for, or, if a New
Escrow Fund has been created, the term of the New Escrow Fund will
continue for, a period of five years commencing on the Liquidation Date.
(ii) The Liquidating Payment Amount shall be an amount equal to 5%
of the sum of (A) all extraordinary distributions paid by Dart to its
shareholders after the date of this Agreement and prior to the
Liquidation Date, plus (B) the net book value of all of Dart's assets, if
any (excluding the Escrow Fund or New Escrow Fund, as the case may be),
immediately prior to the Liquidation Date; provided, however, that the
Liquidating Payment Amount shall not be less than $5 million nor more
than $7.5 million.
(iii) Such deposit of the Liquidating Payment Amount into the
Escrow Fund or New Escrow Fund shall constitute full satisfaction and
discharge of any and all indemnification obligations owed by the Dart
Companies to the RGL Indemnitees hereunder or otherwise by Dart to RMH,
GGH, or LGH, other than to the extent set forth in clause (iv) below;
provided that each of the following conditions shall have been satisfied:
(A) notice of Dart's intention to make a Liquidating Distribution (the
"Liquidating Distribution Notice") was given no earlier than one (1) year
after the Closing Date; and (B) the Liquidation Date shall have occurred
no earlier than 240 calendar days after the Liquidating Distribution
Notice was given.
(iv) Notwithstanding anything contained herein or in any other
Settlement Document to the contrary, nothing in this Section 9.1 shall
limit Dart's obligations to indemnify the RGL Indemnitees for pending or
threatened claims of which Dart has written notice not later than 60 days
before the Liquidation Date.
9.2 INDEMNIFICATION PROCEDURE
(a) NOTICE OF CLAIM. As soon as is reasonably practicable after any
RGL Indemnitee becomes aware of any claim that it has to recover Costs under
this Article 9, such RGL Indemnitee ("Indemnified Party") shall notify the
indemnifying party ("Indemnifying Party") in writing, which notice shall
describe the claim in reasonable detail, and shall indicate the amount
(estimated, if necessary and to the extent feasible) of the claim. The failure
of any Indemnified Party to promptly give any Indemnifying Party such notice
shall not preclude such Indemnified Party from obtaining indemnification under
this Article 9, except to the extent that such Indemnified Party's failure has
materially prejudiced the Indemnifying Party's rights or materially increased
its liabilities and obligations hereunder.
(b) THIRD PARTY CLAIMS. In the event of a third party claim which is
subject to indemnification under this Article 9, the Indemnifying Party shall
have the right, upon agreeing in writing that it is obligated to fully
indemnify the Indemnified Party for the full
44
<PAGE> 49
amount of the Costs relating to such claim (to the extent such claim is
ultimately proven or settled) and providing satisfactory evidence to the
Indemnified Party that the Indemnifying Party has sufficient financial
resources to provide such indemnification and defend such claim properly, to
assume the defense of such claim by counsel of its own choosing (which counsel
may be Jones, Day, Reavis & Pogue or other firm of comparable standing);
provided, however that with respect to claims described in Section 9.2(a), Dart
shall have the sole right to defend against any claim by a third party. If, at
any time, counsel selected by the Dart Companies to defend any such indemnified
claim shall determine, in its opinion, that it is prohibited by the applicable
code or rules of professional conduct from representing any RGL Indemnitee in
defending such claim, Dart shall pay, upon invoice received by Dart, the
reasonable attorneys' fees and expenses of counsel selected by such RGL
Indemnitee to defend such claim. If the Indemnifying Party within a reasonable
time after notice of a claim fails to defend the Indemnified Party, the
Indemnified Party shall be entitled to undertake the defense, compromise or
settlement of such claim at the expense of and for the account and risk of the
Indemnifying Party.
(c) COOPERATION. The Indemnified Party and the Indemnifying Party
shall cooperate with one another in the defense of any claim which is subject
to indemnification under this Article 9, including the settlement of such
matter on the basis stipulated by the Indemnifying Party (with the Indemnifying
Party being responsible for all costs and expenses of such settlement);
provided, however, that the Indemnifying Party shall not include as part of any
such settlement any admission of liability of the Indemnified Party without the
prior written consent of such Indemnified Party, which consent shall not be
unreasonably withheld.
9.3 INDEMNIFICATION ESCROW FUND
On the Closing Date, each of the Dart Companies and each of RMH, GGH and
LGH shall execute and deliver the Indemnification Escrow Agreement, pursuant to
which the Dart Companies shall establish an escrow account for a period of five
years (subject to extension in accordance with Section 9.1(c) hereof) with the
Indemnification Escrow Agent and deposit therein cash in the amount of $500,000
(the "Escrow Fund") for the purpose of satisfying (wholly or partially) any
unpaid indemnification obligations of the Dart Companies under this Article 9,
all as more fully set forth in the Indemnification Escrow Agreement. At the
option of the Dart Companies, a letter of credit or surety bond in the amount
of $500,000 naming RMH, GGH and LGH as beneficiaries and having terms and
conditions satisfactory to RMH, GGH and LGH may be delivered in lieu of the
Indemnification Escrow Agreement.
9.4 REMEDIES CUMULATIVE
The remedies provided herein to any Indemnified Party shall be in
addition to, and not in lieu of, any other remedies to which such Indemnified
Party is entitled at law or in equity for any breach or non-compliance by any
Indemnifying Party with the provisions of this Agreement or any of the other
Settlement Documents.
45
<PAGE> 50
ARTICLE 10. MISCELLANEOUS
10.1 TERMINATION
This Agreement may, by written notice given by RMH, GGH or LGH to the
Dart Companies, on the one hand, or by the Dart Companies to RMH, GGH and LGH,
on the other hand, in the manner provided in Section 10.6, be terminated (a) by
RMH, GGH or LGH prior to the Closing if a material breach by any of the Dart
Companies of any representation, warranty or covenant occurs hereunder and such
breach cannot be cured within a reasonable period of time or such breach has
not been cured within 20 days after the occurrence thereof, (b) by the Dart
Companies prior to the Closing if a material breach by any of RMH, GGH or LGH
of any representation, warranty or covenant occurs hereunder and such breach
cannot be cured within a reasonable period of time or such breach has not been
cured within 20 days after the occurrence thereof, (c) by RMH, GGH or LGH if
the conditions precedent set forth in Section 3.2 shall not have been satisfied
by the Dart Companies or waived by RMH, GGH and LGH and, as a result thereof,
the Closing shall not have occurred on or before September 26, 1997, or (iv) by
the Dart Companies if the conditions precedent set forth in Section 3.1 shall
not have been satisfied by RMH, GGH and LGH or waived by the Dart Companies
and, as a result thereof, the Closing shall not have occurred on or before
September 26, 1997.
10.2 SPECIFIC PERFORMANCE
Each of the parties hereto acknowledges and agrees that in the event of
any material breach of this Agreement or any of the other Settlement Documents,
the non-breaching party would be irreparably harmed and could not be made whole
by monetary damages. It is accordingly agreed that the Dart Companies and RMH,
GGH and LGH, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance (including
temporary restraining orders) of this Agreement and any of the other Settlement
Documents in any action instituted in the United States District Court for the
Eastern District of Virginia or, in the event said court does not have
jurisdiction over such action, in any court of the United States or any state
having subject matter jurisdiction; provided, however, that the party seeking
specific performance may not seek partial specific performance, but instead may
only seek specific performance of all obligations under this Agreement after
tendering performance of all of its obligations under this Agreement, all in
accordance with the terms and subject to the conditions set forth herein.
10.3 DART REMEDIES FOR OTHER DART COMPANY RIGHTS REPRESENTATIONS
If any of RMH, GGH, or LGH have misrepresented their ownership of Other
Dart Company Rights in their representations set forth in Sections 5.5, 6.4 and
7.4 respectively, or if RMH, GGH, or LGH subsequent to the date hereof discover
that they have any Other Dart Company Rights, then immediately upon the
discovery of such misrepresentation or the existence of any additional Other
Dart Company Rights, such Person must take all action and
46
<PAGE> 51
execute and deliver to Dart all documents necessary to immediately assign,
transfer and deliver to Dart such additional Other Dart Company Rights and any
proceeds of such Other Dart Company Rights received by such Person. Dart's
rights under this Section 10.3 shall constitute Dart's exclusive remedy for any
representation by RMH, GGH or LGH concerning the existence of Other Dart
Company Rights owned by such Persons.
10.4 EXPENSES
The parties shall pay their own respective expenses incurred in
connection with this Agreement and the transactions contemplated hereby
(including, without limitation, any sales, transfer or other similar taxes and
fees for accountants and attorneys).
10.5 NO RIGHT OF OFFSET
None of the parties hereto shall exercise any right of offset with
respect to any obligation arising under this Agreement or any of the other
Settlement Documents.
10.6 NOTICES
Any notices or consents required or permitted by this Agreement shall be
in writing and shall be deemed given (a) if delivered in person or by
messenger, when delivered, or (b) if sent by certified mail, postage prepaid,
return receipt requested, in each case when delivered (with the statement of
messenger, return receipt or delivery receipt being deemed conclusive, but not
exclusive, evidence of such delivery), or at such time as delivery is refused
by the addressee upon presentation, addressed as follows, unless any such
address is changed by notice hereunder:
To Dart:
3300 75th Avenue
Landover, MD 20785
Attention: Corporate Secretary
To Crown Books:
3300 75th Avenue
Landover, MD 20785
Attention: Corporate Secretary
To Trak Auto:
3300 75th Avenue
Landover, MD 20785
Attention: Corporate Secretary
47
<PAGE> 52
To Dart/SFW:
3300 75th Avenue
Landover, MD 20785
Attention: Corporate Secretary
To SFW Holding:
3300 75th Avenue
Landover, MD 20785
Attention: Corporate Secretary
To SFW:
3300 75th Avenue
Landover, MD 20785
Attention: Corporate Secretary
In each case with a copy (which shall not constitute notice) to:
Stephen J. Brogan, Esq.
Jones, Day, Reavis & Pogue
1450 G Street, N.W.
Washington, D.C. 20005
To RMH:
Robert M. Haft
2346 Massachusetts Avenue, N.W.
Washington, D.C. 20008
To GGH:
Gloria G. Haft
7661 Wood Duck Drive
Boca Raton, Florida 33434
To LGH:
Linda G. Haft
8709 Burning Tree Road
Bethesda, Maryland 20817
48
<PAGE> 53
In each case with a copy (which shall not constitute notice) to:
David J. Hensler, Esq.
Hogan & Hartson
555 13th Street, N.W.
Washington, D.C. 20004-1109
10.7 FURTHER ASSURANCES
The parties hereto each shall execute and deliver promptly such
additional documents, assignments, certificates and instruments as any other
party to this Agreement may reasonably request in order to effectuate more
effectively the transfers and assignments provided for in this Agreement and
each of the other Settlement Documents.
10.8 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of the parties hereto made in this
Agreement shall survive the closing of the transactions contemplated hereby
until the later to occur of (i) the date that is three (3) years after the
Closing Date and (ii) any survival date otherwise specified in any of the other
Settlement Documents.
10.9 AMENDMENTS
This Agreement may be amended only by a written agreement executed by
each of the parties hereto.
10.10 ENTIRE AGREEMENT
This Agreement (including the Schedules and Exhibits), the other
Settlement Documents, and the documents and instruments executed and delivered
pursuant hereto and thereto, set forth the entire understanding of the parties
hereto and supersede all prior agreements between them with respect to the
subject matter hereof, excluding (i) the letter agreement dated July 10, 1997,
between Hogan & Hartson L.L.P., on behalf of RMH, GGH and LGH, and Dart
pursuant to which RMH, GGH, LGH delivered draft schedules to Dart, and (ii) the
letter agreement dated the date of this Agreement, between Hogan & Hartson
L.L.P., on behalf of RMH, GGH and LGH, and Dart pursuant to which RMH, GGH and
LGH delivered the schedules in the RGL Disclosure Letter to Dart.
10.11 SEVERABILITY
If after the Closing occurs, any one or more of the provisions contained
in this Agreement, the other Settlement Documents, or any other agreement,
document or instrument delivered pursuant hereto and thereto, should be held to
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of all remaining provisions shall not in any way be affected or
impaired.
49
<PAGE> 54
10.12 BINDING EFFECT
(a) This Agreement, the other Settlement Documents, and the other
documents and instruments delivered pursuant hereto and thereto, shall inure to
the benefit of, and shall be binding upon, the respective parties hereto, their
heirs, executors, administrators, successors (including any representative,
executor or administrator of the estate of any of RMH, GGH or LGH) and
permitted assigns.
(b) None of the parties hereto may transfer or assign any RGL Interest
prior to the Closing or any right, title, obligation or interest in or to this
Agreement or any of the other Settlement Documents.
10.13 WAIVER
The waiver by any party hereto of any matter provided for herein shall
not be deemed to be a waiver of any other matter provided for herein.
10.14 NON-WAIVER OF REMEDIES AND ACTIONS
No course of dealing between or among Dart and any or all of RMH, GGH and
LGH with respect to any of the transactions contemplated herein or in the
Settlement Documents, waiver of conditions precedent, or delay on the part of
any such party in exercising any rights or remedies available to such party
shall operate as a waiver of any rights or remedies available to such party
whether for breach of this Agreement or otherwise, except to the extent
expressly set forth herein or otherwise waived in writing by such party.
10.15 EXHIBITS AND SCHEDULES
The Exhibits and Schedules attached to this Agreement are incorporated
herein and shall be part of this Agreement for all purposes.
10.16 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) SUBMISSION TO JURISDICTION. EACH DART COMPANY AND EACH OF RMH, GGH
AND LGH HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AND THE STATE COURTS OF THE
COMMONWEALTH OF VIRGINIA FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER SETTLEMENT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH DART COMPANY AND EACH OF
RMH, GGH AND LGH IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY
50
<PAGE> 55
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(b) SERVICE OF PROCESS. Each Dart Company and each of RMH, GGH and LGH
hereby irrevocably consents to the service of any and all process in any suit,
action or proceeding by mailing of copies of such process to it at its address
provided pursuant to Section 10.6. Each Dart Company and each of RMH, GGH and
LGH hereby agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. All mailings under this
Section 10.16(b) shall be by Federal Express or other recognized overnight
courier. Nothing in this Section 10.16(b) shall affect the right of any party
hereto to serve legal process in any other manner permitted by law or affect
the right of any party hereto to bring any suit, action or proceeding against
any other party or the property of any other party in the courts of any other
jurisdictions.
10.17 GOVERNING LAW
Except as set forth in Article 9, this Agreement, the other Settlement
Documents and any other documents and instruments delivered pursuant hereto,
except as otherwise provided therein, shall be construed in accordance with and
governed by the laws of the Commonwealth of Virginia (excluding the choice of
law provisions thereof).
10.18 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
ARTICLE 11. EFFECTIVENESS
11.1 LIMITED INITIAL EFFECTIVENESS OF AGREEMENT.
(a) Notwithstanding any other provision of this Agreement, none of the
agreements, obligations or commitments of any of the Dart Companies set forth
in this Agreement shall be effective prior to the twelfth (12th) Business Day
after the date of this Agreement set forth in the first sentence hereof, except
for the following agreements:
(i) STANDSTILL ORDER NOTICE. Not later than two (2) Business
Days after the date of this Agreement set forth in the first
sentence hereof, Dart shall give written notice of this
Agreement pursuant to Section 8 of the Standstill Order to
the other parties to the Section 225 Lawsuit and the HHH
Settlement Lawsuit.
51
<PAGE> 56
(ii) BOARD OF DIRECTORS CONSIDERATION. Not later than ten (10)
Business Days after the date of this Agreement set forth in
the first sentence hereof, the Board of Directors of each of
the Dart Companies shall hold a meeting to consider the
authorization of this Agreement.
(iii) CLASS B STOCKHOLDER CONSIDERATION. Not later than three (3)
Business Days after the date of this Agreement set forth in
the first sentence hereof, Dart shall deliver to each of GGH,
RMH, LGH, HHH and RSH (the "Requested Consentors"), and
Richard B. Stone, as Voting Trustee, a request that he, she
or it consent, if and to the extent that he, she or it has
(or claims to have) power to vote any shares of Class B
Common Stock, to the execution, delivery and performance of
this Agreement by Dart and the other Dart Companies.
(b) This Agreement shall be null, void and of no effect, ab initio, if
(i) on or before the eighth (8th) Business Day after the date of
this Agreement set forth in the first sentence hereof, the
Delaware Court of Chancery issues any order, writ, injunction
or decree restraining, enjoining or prohibiting in any way
the effectiveness of this Agreement or the consummation of
any of the transactions contemplated by this Agreement, or
(ii) the execution, delivery and performance of this Agreement is
not authorized and approved by the Boards of Directors of all
of the Dart Companies, and by Richard B. Stone, as Voting
Trustee, the Executive Committee and the Special Litigation
Committee of the Board of Directors of Dart on or before the
tenth (10th) Business Day after the date of this Agreement
set forth in the first sentence hereof,
(c) If Dart has not received from all of the Requested Consentors
written consents, in form and substance satisfactory to Dart's Board of
Directors in its sole discretion, to the execution, delivery and performance of
this Agreement by Dart and the other Dart Companies, then Dart may, by delivery
of written notice on the eleventh (11th) Business Day after the date of this
Agreement set forth in the first sentence hereof, to the attention of David J.
Hensler, Esq., at the offices of Hogan & Hartson, 555 13th Street, N.W.,
Washington, D.C. 20004, elect that this Agreement shall not be effective,
whereupon this Agreement shall be null, void and of no effect, ab initio.
11.2 RMH, GGH AND LGH BOUND
All of the provisions of this Agreement shall be binding on and effective
with respect to RMH, GGH and LGH from the date stated in the first sentence of
this Agreement. RMH, GGH and LGH hereby acknowledge that adequate and valid
consideration has been received
52
<PAGE> 57
for their agreement to be bound to all of the provisions of this Agreement from
this date, notwithstanding Dart's right to elect not to be bound pursuant to
Section 11.1.
[Remainder of Page Intentionally Left Blank.]
53
<PAGE> 58
Signature Page to Settlement Agreement
by and among the Dart Companies, RMH, GGH and LGH.
IN WITNESS WHEREOF, the parties hereto have duly executed, or have caused
this Settlement Agreement to be duly executed on their behalf, on the date
first above written.
Attest: DART GROUP CORPORATION
/s/ Elliot R. Arditti By: /s/ Larry G. Schafran
- ------------------------------ ------------------------------------
Elliot R. Arditti, Secretary Larry G. Schafran
Chairman of the Executive
Committee of the Board of Directors
Attest: CROWN BOOKS CORPORATION
/s/ Elliot R. Arditti By: /s/ Larry G. Schafran
- ------------------------------ ------------------------------------
Elliot R. Arditti, Secretary Larry G. Schafran
Chairman of the Executive Committee of
the Board of Directors
Attest: TRAK AUTO CORPORATION
/s/ Elliot R. Arditti By: /s/ Larry G. Schafran
- ------------------------------ ------------------------------------
Elliot R. Arditti, Secretary Larry G. Schafran
Chairman of the Executive Committee of
the Board of Directors
Attest: Dart/SFW CORP.
/s/ Elliot R. Arditti By: /s/ Larry G. Schafran
- ------------------------------ ------------------------------------
Elliot R. Arditti, Secretary Name:
Title:
<PAGE> 59
Signature Page to Settlement Agreement
by and among the Dart Companies, RMH, GGH and LGH.
Attest: SFW HOLDING CORP.
/s/ Elliot R. Arditti By: /s/ Larry G. Schafran
- ------------------------------ --------------------------------
Elliot R. Arditti, Secretary Name:
Title:
Attest: SHOPPERS FOOD WAREHOUSE CORP.
/s/ Elliot R. Arditti By: /s/ Larry G. Schafran
- ------------------------------ --------------------------------
Elliot R. Arditti, Secretary Name:
Title:
/s/ Glenn Jacobs /s/ Robert M. Haft
- ------------------------------ --------------------------------
Witness ROBERT M. HAFT
/s/ Rosemarie Estey /s/ Gloria G. Haft
- ------------------------------ --------------------------------
Witness GLORIA G. HAFT
/s/ Jane T. Ryan /s/ Linda G. Haft
- ------------------------------ --------------------------------
Witness LINDA G. HAFT
