AGREEMENT OF SETTLEMENT AND RELEASE
AGREEMENT OF SETTLEMENT AND RELEASE dated this 29th day of
February, 2000 by and among (i) Beekman Winthrop, Phoebe Jane
Winthrop, Dudley Winthrop, Dudley Winthrop WMI Trust, Winthrop
Holdings Limited Partnership, Beekman Winthrop Birthday Trust,
Beekman Winthrop WMI Trust and William Levy (collectively, the
"Winthrop Parties") and (ii) Central Coal & Coke Corporation
(the "Company"), Phelps M. Wood, Phelps C. Wood, Patrick J. Moran,
James Ukropina, Ray Infantino and Bruce Franke (collectively, the
"Central Parties").
W I T N E S S E T H
WHEREAS, the 1999 annual meeting of stockholders of the
Company (the "Annual Meeting") was held on April 21, 1999; and
WHEREAS, following the Annual Meeting, the Winthrop Parties
initiated a lawsuit against the Central Parties in the Court of
Chancery of the State of Delaware, styled Winthrop, et al. v.
Central Coal & Coke Corp., et al., Civil Action No. 17162 (the
"Action") challenging the results of the election of directors
at the Annual Meeting; and
WHEREAS, since the Annual Meeting, the Winthrop Parties and
the Central Parties have been involved in a number of disputes and
disagreements regarding the governance, management and operations
of the Company; and
WHEREAS, the Winthrop Parties and the Central Parties wish
to resolve their disputes without resort to continued litigation
or further litigation;
NOW, THEREFORE, in consideration of the mutual promises
contained herein and for other good and valuable consideration,
the undersigned parties to this Agreement of Settlement and Release
(the "Agreement") do hereby agree and undertake to settle all of
their disputes as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale of Shares. Upon and subject to the
terms and conditions hereinafter set forth, the Winthrop Parties
shall sell, assign, transfer and deliver to the Company 97,231
shares of common stock, par value $1.00 per share, of the Company
(the "Shares") and the Company shall purchase and acquire all of
the Winthrop Parties' right, title and interest in and to the Shares. The
aggregate purchase price of the Shares shall be $3,257,238.50 (the "Purchase
Price").
1.2 Items Delivered. The Winthrop Parties shall cause the
record owner(s) of the Shares to transfer ownership of the Shares
to the Company. Upon transfer of the Shares to the Company, the
Company shall deliver payment of the Purchase Price in immediately
available funds by wire transfer to the attorney trust account of
Barton, Barton & Plotkin, LLP.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Representations and Warranties of the Winthrop Parties.
The Winthrop Parties represent and warrant that (i) they are the
sole beneficial owners of the Shares, free and clear of all liens,
claims, encumbrances, restrictions on transfer or rights of third
parties of any nature whatsoever ("Liens"), (ii) neither they or
any of their affiliates or associates (as those terms are defined
in Section 4.1 of this Agreement) have any right, title or interest
in or to any shares of or options or warrants to acquire shares of
common stock, par value $1.00 per share, of the Company or any other
securities of the Company other than the 97,231 Shares described in
Section 1.1 of this Agreement, (iii) they have the unrestricted right
to sell, assign and transfer the Shares as contemplated herein, (iv)
the performance by the Winthrop Parties of their obligations
hereunder will vest in the Company title to the Shares, free and
clear of all Liens, (v) they have all requisite power and authority
to execute, deliver and perform this Agreement and to sell, assign
and transfer the Shares, (vi) this Agreement constitutes a valid and
binding obligation of the Winthrop Parties, enforceable in
accordance with its terms and (vii) no consent, approval, waiver,
authorization or filing is necessary for the execution, delivery
and performance by the Winthrop Parties of this Agreement.
Notwithstanding any provision of this Agreement to the contrary,
in the event that, whether prior to or subsequent to the Closing,
any Lien relating to the Shares shall be discovered by any party
hereto, such party shall immediately give notice thereof to the
Winthrop Parties and the Winthrop Parties shall, at their sole cost
and expense, remove or cause to be removed such Lien.
2.2 Representations and Warranties of the Central Parties.
The Central Parties represent and warrant that (i) they have all
requisite power and authority to execute, deliver and perform
this Agreement, (ii) this Agreement constitutes a valid and
binding obligation of the Central Parties, enforceable in
accordance with its terms, and (iii) no consent, approval,
waiver, authorization or filing is necessary for the execution,
delivery and performance by the Central Parties of this Agreement.
2.3 Indemnification of the Winthrop Parties. The Company's
hall defend and promptly indemnify and save the Winthrop Parties
harmless from, against, for and in respect of, and shall promptly
pay upon submission of statements therefor, any and all damages,
losses, obligations, liabilities, claims, encumbrances,
deficiencies, costs and expenses, including, without limitation,
attorneys' fees and other costs and expenses incident to any action,
investigation, claim or proceeding (all hereinafter collectively
referred to as "Losses") suffered, sustained, incurred or required
to be paid by the Winthrop Parties, or any of them, by reason of
or relating to any breach or failure of observance or performance
of any representation, warranty covenant, agreement or commitment
hereunder or relating hereto made by any of the Central Parties.
2.4 Indemnification of the Central Parties. The Winthrop
Parties shall, severally but
not jointly, defend and promptly
indemnify and save the Central Parties harmless from, against,
for and in respect of and shall promptly pay upon submission of
statements therefor, any and all Losses suffered, sustained,
incurred or required to be paid by the Central Parties by reason
of any breach or failure of observance or performance of any
representation, warranty, covenant, agreement or commitment
hereunder or relating hereto made by any of the Winthrop Parties.
ARTICLE III
MUTUAL GENERAL RELEASES
3.1 Release by the Winthrop Parties. The Winthrop Parties agree
and covenant, on behalf of themselves and their respective heirs,
estates, officers, directors, partners, trustees, beneficiaries,
successors, predecessors, subsidiaries, principals and affiliates
(the "Winthrop Releasors"), to remise, release and forever
discharge, and covenant not to sue or take any steps to further
any existing litigation against, the Central Parties and their
respective heirs, estates, successors, affiliates, subsidiaries,
officers, directors, partners, trustees, beneficiaries, employees,
agents, representatives, attorneys and any other advisors or
consultants to Central Parties (collectively, the "Central
Releasees"), and each of them, from and in respect of any and
all claims and causes of action, whether based on any federal,
state or foreign law or right of action, direct, indirect or
representative in nature, foreseen or unforeseen, matured or
unmatured, known or unknown, which any of, or all, the Winthrop
Releasors have, had or may have against the Central Releasees,
or any of them, of any kind, nature or type whatsoever, up to
the date of this Agreement, except that the Winthrop Releasors do
not release the Central Releasees from any claims they may have
related to or connected in any way with the performance or
enforcement of the terms of this Agreement.
3.2 Release by the Central Parties. The Central Parties agree
and covenant, on behalf of themselves and their respective heirs,
estates, officers, directors, partners, trustees, beneficiaries,
successors, predecessors, subsidiaries, principals and affiliates
(the "Central Releasors"), to remise, release and forever discharge,
and covenant not to sue or take any steps to further any existing
litigation against, the Winthrop Parties and their respective heirs,
estates, successors, affiliates, subsidiaries, officers, directors,
partners, trustees, beneficiaries, employees, agents,
representatives, attorneys and any other advisors or consultants
to the Winthrop Parties (collectively, the "Winthrop Releasees"),
and each of them, from and in respect of any and all claims and
causes of action, whether based on any federal, state or foreign
law or right of action, direct, indirect or representative in
nature, foreseen or unforeseen, matured or unmatured, known or
unknown, which any of, or all, the Central Releasors have, had or
may have against the Winthrop Releasees, or any of them, of any
kind, nature or type whatsoever, up to the date of this Agreement,
except that the Central Releasors do not release the Winthrop
Releasees from any claims they may have related to or connected in
any way with the performance or enforcement of the terms of this
Agreement.
3.3 Releases Binding, Unconditional and Final. The parties
hereby acknowledge and agree that the releases and covenants
provided for herein shall be binding, unconditional and final upon
full execution of this Agreement.
3.4 Undiscovered Facts. The parties acknowledge that they may
hereafter discover facts in addition to or different from those
which they now know or believe to be true with respect to the
subject matters of the releases and covenants contained herein,
but that it is their intention that such facts shall have no effect
on such releases or covenants; in furtherance of such intention,
they acknowledge that the releases and covenants contained herein
shall be and remain in effect notwithstanding the subsequent
discovery or existence of any such additional or different facts.
Moreover, the parties acknowledge that they have considered the
possibility that they may not now fully know the number and
magnitude of all claims which they have released hereby but agree
nonetheless to assume that risk and desire to release such unknown
claims.
3.5 The Action. The Winthrop Parties agree not to pursue any
other rights or remedies in, through or with respect to the Action,
including but not limited to appealing any aspect of the judgment
in the Action.
ARTICLE IV
STANDSTILL
4.1 From and after the date of this Agreement, the Winthrop
Parties and their respective agents, representatives, affiliates,
associates and all other persons acting in concert with or under
the control or direction of any of the Winthrop Parties shall not,
directly or indirectly: (a) acquire, enter into any option to
acquire, offer to acquire, agree to acquire, become the record,
legal or beneficial owner of or obtain any rights in respect to
any securities of the Company, by purchase, conversion, exchange
or exercise of Company securities pursuant to their terms, or take
any action in furtherance thereof; or (b) participate in any proxy
solicitation or become a member of any "group," within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934
(the "Exchange Act") or the rules and regulations of the Securities
and Exchange Commission promulgated thereunder, with respect to
the Company or any Company securities. As used herein, the
terms "affiliate" and "associate" shall have the meanings given
such terms in Rule 12b-2 of the Exchange Act, and the term
"person" shall mean any individual, partnership, corporation,
group (as defined above), syndicate, trust or any other association
or entity.
ARTICLE V
NONDISPARAGEMENT; LITIGATION; CONFIDENTIALITY
5.1 Nondisparagement; Litigation. The Winthrop Parties agree
and covenant, on behalf of themselves and their respective heirs,
estates, officers, directors, partners, trustees, beneficiaries,
successors, predecessors, subsidiaries, principals and affiliates
not to directly or indirectly disparage, criticize, or make any
negative public or private comments about any of the Central
Parties or any of their respective heirs, estates, successors,
affiliates, subsidiaries, officers, directors, partners, trustees,
beneficiaries, employees, agents, representatives, attorneys and
any other advisors or consultants to Central Parties to any person
or entity or to assist any person or entity to initiate or pursue,
directly or indirectly, any litigation, arbitration, suit, claim,
or complaint against the Central Parties or any of their respective
heirs, estates, successors, affiliates, subsidiaries, officers,
directors, partners, trustees, beneficiaries, employees, agents,
representatives, attorneys and any other advisors or consultants
to Central Parties relating to any matter whatsoever, excluding,
however, any litigation, arbitration, suit, claim, or complaint
filed in connection with a breach of this Agreement. The Central
Parties agree and covenant, on behalf of themselves and their
respective heirs, estates, officers, directors, partners, trustees,
beneficiaries, successors, predecessors, subsidiaries, principals
and affiliates not to directly or indirectly disparage, criticize,
or make any negative public or private comments about the
Winthrop Parties or any of their respective heirs, estates,
successors, affiliates, subsidiaries, officers, directors,
partners, trustees, beneficiaries, employees, agents,
representatives, attorneys and any other advisors or consultants
to the Winthrop Parties or assist any person or entity to initiate
or pursue, directly or indirectly, any litigation, arbitration,
suit, claim or complaint against the Winthrop Parties or any of
their respective heirs, estates, successors, affiliates,
subsidiaries, officers, directors, partners, trustees,
beneficiaries, employees, agents, representatives, attorneys
and any other advisors or consultants to the Winthrop Parties
relating to any matters whatsoever, excluding, however, any
litigation, arbitration, suit, claim, or complaint filed in
connection with a breach of this Agreement.
5.2 Confidentiality. The parties to this Agreement shall
maintain the confidentiality of this Agreement and the terms
hereof, except to the extent necessary to comply in good faith
with applicable securities laws or regulations.
5.3 Notwithstanding Sections 5.1 and 5.2 of this Agreement,
nothing contained herein shall limit the ability of any party
to this Agreement to provide documents or information responsive
to legal process or legal proceedings, or requests from any
government or regulatory agency or authority in connection with
any formal or informal inquiry, investigation or proceeding
(a "Request"). If any party to this Agreement receives such a
Request, it shall (i) give prompt actual written notice, by hand
or facsimile transmission, and in no event later than forty-eight
hours of receipt of such Request, to all other parties to this
Agreement and (ii) shall use its best efforts to maintain the
confidentiality of such documents or information.
ARTICLE VI
MISCELLANEOUS
6.1 No Concession of Liability. This Agreement shall not in
any event be construed or deemed a concession on the part of any
of the undersigned to the truth of any allegations, claims, or
defenses made by any of the parties in the Action or otherwise,
or of any liability or wrongdoing of any of the parties.
6.2 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof.
The representations, warranties, covenants and agreements set forth
in this Agreement constitute all the representations, warranties,
covenants and agreements of the parties hereto and upon which the
parties have relied and except as may be specifically provided
herein, no change, modification, amendment, addition or termination
of this Agreement or any part thereof shall be valid unless in
writing and signed by or on behalf of the party to be charged
therewith.
6.3 Fees and Expenses of Transaction. The parties hereto shall
each bear his, her or its own expenses in connection with this
transaction.
6.4 Waivers. No waiver of the provisions hereof shall be
effective unless in writing and signed by the party to be charged
with such waiver. No waiver shall be deemed a continuing waiver or
waiver in respect of any subsequent breach or default, either of
similar or different nature, unless expressly so stated in writing.
6.5 Governing Law. This Agreement shall be governed,
interpreted and construed in accordance with the laws of the State
of Delaware applicable to contracts to be performed entirely
within that State. Should any clause, section or part of this A
greement be held or declared to be void or illegal for any reason,
all other clauses, sections or parts of this Agreement which can
be effected without such illegal clause, section or part shall
nevertheless continue in full force and effect.
6.6 Jurisdiction and Venue. Each party hereto hereby agrees
that any proceeding relating to this Agreement shall be brought
in a state court of Delaware. Each party hereto hereby consents
to personal jurisdiction in any such action brought in any such
Delaware court, consents to service of process by registered mail
made upon such party and/or such party's agent and waives any
objection to venue in any such Delaware court and a claim that
any such Delaware court is an inconvenient forum.
6.7 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns or heirs and personal representatives.
6.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one instrument.
6.9 Survival of Representations. All of the representations,
warranties, covenants, releases and indemnities of the parties set
forth in this Agreement will survive the transfer of the Shares to
the Company.
6.10 No Third Party Rights. The representations, warranties
and agreements of the parties contained herein are intended solely
for the benefit of the party to whom such representations,
warranties or agreements are made, shall confer no rights
hereunder, whether legal or equitable, in any other person or
entity, and no other person or entity shall be entitled to rely
thereon.
6.11 Construction. This Agreement shall not be more strictly
construed against one party than against any other merely because
it was prepared by counsel for that party, it being recognized
that, because of the arm's length negotiations, all parties have
materially and substantially contributed to the preparation, review
and final terms of this Agreement.
6.12 Indemnification of Beekman Winthrop. If Beekman Winthrop
is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding") by
reason of the fact that he was a director or officer of the
Company or was serving at the request of the Company as a
director, officer, employee or agent of any other corporation
or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, he
shall be indemnified and held harmless by the Company to the
fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, (but, in
the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification
rights than said Law permitted the Company to provide prior to
such amendment) against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith; provided, however, that the Company shall indemnify
Beekman Winthrop in connection with a Proceeding (or part thereof)
initiated by him only if Proceeding (or part thereof) was
authorized by the Board of Directors of the Company. Such
right shall be a contract right and shall include the right
to be paid by the Company expenses incurred in defending any
such Proceeding in advance of its final disposition; provided,
however, that, the payment of such expense incurred by Beekman
Winthrop in advance of the final disposition of such Proceeding,
shall be made only upon delivery to the Company of an undertaking,
by or on behalf of Beekman Winthrop to repay all amounts so
advanced if it should be determined ultimately that he is not
entitled to be indemnified.
6.13 Withdrawal of Stockholder Proposal. Dudley Winthrop shall
withdraw the proposal which he has requested the Company, by letter
dated November 23, 1999, to include in its proxy materials for the
2000 annual meeting of stockholders of the Company. None of the
Winthrop Parties shall propose, initiate, facilitate or encourage
any stockholder proposals with respect to the Company.
6.14 Specific Performance; Injunctive Relief. The parties to
this Agreement agree that solely a remedy at law for breach of this
Agreement is inadequate and that any party by whom this Agreement
is enforceable shall be entitled to institute and prosecute
proceedings, either at law or in equity, to seek specific
performance of the terms and conditions of this Agreement,
to obtain injunctive relief or to obtain any other appropriate
relief or remedy. Such remedies shall, however, be cumulative
and not exclusive and shall be in addition to any other remedies
which a party may have under this Agreement or at law.
6.15 Notices. Unless otherwise provided by the terms of this
Agreement, any and all notices or other communications or
deliveries required or permitted to be given or made pursuant
to any of the provisions of this Agreement shall be deemed to
have been duly given or made for all purposes if sent by certified
or registered mail, return receipt requested and postage prepaid,
or delivered in person to the parties at the following addresses:
(i) on behalf of the Winthrop Parties, Mr. Beekman Winthrop,
5722 Benton Street, N.W., Washington, DC 20007 and (ii)
on behalf of the Central Parties, Central Coal & Coke Corporation,
Attn: Secretary, 127 W. 10th Street, Suite 666, Kansas City,
Missouri 64105, or at such
other address as any party may specify by notice given to other
parties in accordance with this Section. The date of giving of
any such notice shall be (a) in the case of hand delivery, when
actually delivered to the addressee and (b) in the case of
registered or certified mail, three (3) days after mailing.
Copies of all notices shall be sent to Roger E. Barton, Esquire,
Barton, Barton & Plotkin LLP, 420 Lexington Avenue, New York,
New York 10170 and Ernest N. Yarnevich, Jr., Esquire, 600 Plaza
West Building, 4600 Madison Avenue, Kansas City, Missouri 64112.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the 29th day of February, 2000.
/s/ Beekman Winthrop
________________________
BEEKMAN WINTHROP
/s/ Phoebe Jane Winthrop
__________________________
PHOEBE JANE WINTHROP
/s/ Dudley Winthrop
___________________________
DUDLEY WINTHROP
DUDLEY WINTHROP WMI TRUST
By: /s/ Beekman Winthrop, Trustee
_________________________________
BEEKMAN WINTHROP
Trustee
WINTHROP HOLDINGS LIMITED
PARTNERSHIP
By: Woodwin Management, Inc.
General Partner
By: /s/ Beekman Winthrop, President
___________________________________
BEEKMAN WINTHROP
President
BEEKMAN WINTHROP BIRTHDAY TRUST
By: /s/ Phoebe Jane Winthrop, Trustee
_____________________________________
PHOEBE JANE WINTHROP
Trustee
BEEKMAN WINTHROP WMI TRUST
By: /s/ Phoebe Jane Winthrop, Trustee
_____________________________________
PHOEBE JANE WINTHROP
TRUSTEE
/s/ William Levy
________________
WILLIAM LEVY
CENTRAL COAL & COKE CORPORATION
By: /s/ Phelps M. Wood
______________________
PHELPS M. WOOD
President
/S/PHELPS M. WOOD
______________________
Phelps M. Wood
/s/ Phelps C. Wood
_______________________
PHELPS C. WOOD
/s/ Patrick J. Moran
_______________________
PATRICK J. MORAN
/s/ James Ukropina
_______________________
JAMES UKROPINA
/s/ Ray Infantino
______________________
RAY INFANTINO
/s/ Bruce Franke
______________________
BRUCE FRANKE