EXHIBIT 10.3
NO. 87-4739-G
DUPEY MANAGEMENT CORPORATION, IN THE DISTRICT COURT OF
Plaintiff,
VS. DALLAS COUNTY, TEXAS
MICHAELS STORES, INC. and
B.B. TULEY, Individually
Defendants. 134TH DISTRICT COURT
RELEASE AND SETTLEMENT AGREEMENT
This Agreement is made on this date by and between Dupey
Management Corporation ("DMC"), Michael J. Dupey, individually
("Dupey"), Patricia Dupey, individually ("Patricia") [DMC, Dupey
and Patricia will be collectively referred to as the "Dupey
Group"], Michaels Stores, Inc. ("MSI"), and B. B. Tuley,
individually ("Tuley"), and is as follows:
WHEREAS, DMC filed Plaintiff's First Amended Petition (the
"Petition") in the above-entitled and numbered cause against MSI
and Tuley; and
WHEREAS, MSI filed Defendant's Original Counter-Petition (the
"Counter-Petition") in the above-entitled and numbered cause
against DMC, Dupey, Patricia and the Michael and Patricia Dupey
Family Trust ("Trust"); and
WHEREAS, the Dupey Group, Michaels and Tuley have reached a
Settlement Agreement whereby the Dupey Group has agreed to release
MSI and Tuley in exchange for a mutual release from MSI and Tuley
of the Dupey Group and the beneficiaries of the
RELEASE AND SETTLEMENT AGREEMENT - Page 1
Trust, and MSI and Tuley have agreed to release the Dupey Group and
the beneficiaries of the Trust in exchange for a mutual release from
the Dupey Group of MSI and Tuley.
NOW, THEREFORE, for and in consideration of (i) the dismissal
with prejudice of the claims made against MSI and Tuley in the
Petition, (ii) the general release granted herein, and (iii) other
good and valuable consideration, receipt of which is hereby
acknowledged, MSI and Tuley do hereby release, acquit and forever
discharge the Dupey Group, their affiliated corporations and
entities, and their officers, employees, agents, representatives,
successors, heirs and assigns, and the beneficiaries of the Trust,
their successors, heirs and assigns, of and from any and all
actions, causes of action, claims and demands, damages, costs and
expenses of whatever kind or character, whether known or unknown,
existing as of the date of this Agreement, including but not
limited to any and all claims which were made or could have been
made by MSI or Tuley in the referenced cause.
FURTHERMORE, in consideration of (i) the dismissal with
prejudice of claims made against the Dupey Group and the Trust in
the Counter-Petition, (ii) the general release granted herein, and
(iii) other good and valuable consideration, receipt of which is
hereby acknowledged, the Dupey Group does hereby release, acquit
and forever discharge MSI and Tuley, their affiliated corporations
and entities, and their officers,
RELEASE AND SETTLEMENT AGREEMENT - Page 2
employees, agents, representatives, successors, heirs and assigns,
of and from any and all actions, causes of action, claims and demands,
damages, costs and expenses of whatever kind or character, whether
known or unknown, existing as of the date of this Agreement, including
but not limited to any and all claims which were made or could have
been made by the Dupey Group in the referenced cause.
The Dupey Group represents that the Trust has been dissolved
and thus does not have the capacity to grant a release to MSI and
Tuley. In the event the Trust should ever attempt to assert a
claim against MSI, Tuley, their affiliated corporations or entities
or their officers, employees, agents, representatives, successors,
heirs or assigns, the Dupey Group agrees to indemnify them for such
claims and agrees to cause the Trust to release such claims.
For the same aforesaid consideration, MSI and Tuley do hereby
assign to the Dupey Group any and all causes of action and claims
that they may have against the Dupey Group or the beneficiaries of
the Trust which arise or result from the claims asserted by MSI and
Tuley in the referenced cause.
For the same aforesaid consideration, the Dupey Group does
hereby assign to MSI and Tuley any and all causes of action and
claims that it may have against MSI and/or Tuley which arise or
result from the claims asserted by the Dupey Group in the
referenced cause.
RELEASE AND SETTLEMENT AGREEMENT - Page 3
For the same aforesaid consideration, the parties hereto agree
that (i) each of the Consulting Agreements between DMC and MSI (or
its predecessor in interest), dated March 25, 1983, July 23, 1984,
and March 30, 1985, respectively, shall be null and void and (ii)
each of the Purchase Agreements between DMC and MSI (or its
predecessor in interest), dated March 25, 1983, July 23, 1984, and
March 30, 1985, respectively, and the Amendment to Purchase
Agreement dated December 15, 1986, shall be null and void;
furthermore, the parties hereto agree that there are no obligations
or monies due or to become due under any of such agreements. It is
stipulated, however, that notwithstanding any other provision of
this Agreement, nothing herein shall (i) release MSI, Tuley or DMC
from any obligations under any new Consulting Agreement executed in
1988 or (ii) affect the rights or obligations of any of the parties
to the March 25, 1983, Asset Purchase and Territorial Development
Agreement among Dupey Enterprises, Inc., DMC and the Trust, as
amended by the March 30, 1985, Amendment to Asset Purchase and
Territorial Development Agreement; provided, however, MSI hereby
releases the Dupey Group and the beneficiaries of the Trust from
the claims asserted against them in Paragraphs XIII and XIV of the
Second Cause of Action contained in the Counter-Petition, and any
other claims relating to the Dupey Group's past use of registered
service marks of MSI; and provided further, however, that Sections
4, 5 and 9 of such
RELEASE AND SETTLEMENT AGREEMENT - Page 4
Asset Purchase and Territorial Development Agreement shall be null
and void.
It is expressly warranted by MSI and Tuley that they are the
owners of all causes of action arising or resulting from the
occurrences described in the Counter-Petition, and that they have
not assigned any cause of action to a third party.
It is expressly warranted by each member of the Dupey Group
that they are the owners of all causes of action arising or
resulting from the occurrences described in the Petition and that
they have not assigned any cause of action to a third party.
It is expressly agreed by all parties that neither this
Agreement nor any part hereof shall be construed or used as an
admission of liability on the part of the Dupey Group, MSI or
Tuley, all of whom expressly deny liability. Any action taken
hereunder is taken in compromise settlement, and to avoid the
trouble and expense of further investigation and litigation in
connection the aforesaid dispute.
It is understood and agreed that counsel for the Dupey Group,
MSI and Tuley will execute and present to the Court an Agreed Order
of Dismissal in the form and substance of that attached hereto as
Exhibit "A", dismissing the claims asserted by the Dupey Group
against MSI and Tuley, and further dismissing the claims asserted
by MSI against the Dupey Group and the Trust, with prejudice to the
rights of the Dupey Group, MSI or Tuley to refile same or any part
thereof against any of
RELEASE AND SETTLEMENT AGREEMENT - Page 5
the parties in this cause, and that each party will bear its
own costs.
This Release and Settlement Agreement shall be construed under
and controlled by the laws of the State of Texas.
This Release and Settlement Agreement may not be clarified,
modified, changed, or amended except in writing signed by each of
the respective signatories hereto. This Release and Settlement
Agreement may be executed in multiple counterparts, which, taken
together, constitute the original.
DUPEY MANAGEMENT CORPORATION
By: Michael J. Dupey
------------------------------
Its: C.E.O.
------------------------------
Date: 2-15-88
------------------------------
/s/ Michael J. Dupey
------------------------------------
MICHAEL J. DUPEY, INDIVIDUALLY
/s/ Patricia Dupey
------------------------------------
PATRICIA DUPEY, INDIVIDUALLY
MICHAELS STORES, INC.
By: B. B. Tuley
------------------------------
Its: President
------------------------------
Date: 2-15-88
------------------------------
/s/ B. B. Tuley
------------------------------------
B. B. TULEY, INDIVIDUALLY
RELEASE AND SETTLEMENT AGREEMENT - Page 6
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared Michael J. Dupey,
the CEO, on behalf of DUPEY MANAGEMENT CORPORATION, known to me to
be the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated and
as the act and deed of said corporation.
GIVEN under my hand and seal of office this 15th day of
February, 1988.
/s/ Karen Clarke Geuley
-----------------------------------
Notary Public - State of Texas
My commission expires: 12-11-89
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared MICHAEL J. DUPEY,
known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the
same for the purposes and consideration therein expressed.
GIVEN under my hand and seal of office this 15th day of
February, 1988.
/s/ Karen Clarke Geuley
-----------------------------------
Notary Public - State of Texas
My commission expires: 12-11-89
RELEASE AND SETTLEMENT AGREEMENT - Page 7
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared PATRICIA DUPEY,
known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she executed the
same for the purposes and consideration therein expressed.
GIVEN under my hand and seal of office this 15th day of
February, 1988.
/s/ Karen Clarke Geuley
-----------------------------------
Notary Public - State of Texas
My commission expires: 12-11-89
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared B. B. Tuley,
the President, of MICHAELS STORES, INC., known to me to be the
person whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein
stated and as the act and deed of said corporation.
GIVEN under my hand and seal of office this 15th day of
February, 1988.
/s/ Rose M. King
----------------------------------
Notary Public - State of Texas
My commission expires: 4-3-89
RELEASE AND SETTLEMENT AGREEMENT - Page 8
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared B.B. TULEY, known
to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
GIVEN under my hand and seal of office this 15th day of
February, 1988.
/s/ Rose M. King
-----------------------------------
Notary public - State of Texas
My commission expires: 4-3-89
RELEASE AND SETTLEMENT AGREEMENT - Page 9
EXHIBIT A
NO. 87-4739
DUPEY MANAGEMENT CORPORATION, IN THE DISTRICT COURT OF
Plaintiff,
VS. DALLAS COUNTY, TEXAS
MICHAELS STORES, INC.,
Defendant. 134TH DISTRICT COURT
AGREED ORDER OF DISMISSAL
On this date came to be heard the Motion of DUPEY MANAGEMENT
CORPORATION, MICHAEL J. DUPEY, Individually, PATRICIA DUPEY,
Individually, MICHAELS STORES, INC., and B. B. TULEY, in the above-
entitled and numbered cause, seeking dismissal of said cause with
prejudice. The Court is of the opinion and finds that all matters
in dispute between the parties as asserted herein have been fully
and finally compromised and settled as evidenced by their execution
of a Release and Settlement Agreement.
IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the
above-entitled and numbered cause be and the same is dismissed with
prejudice to the rights of the parties hereto to refile same or any
part thereof, and that each party is to bear its own costs.
SIGNED this ____ day of ___________ , 1988.
-----------------------------------
JUDGE PRESIDING
AGREED ORDER OF DISMISSAL - Page 1
APPROVED:
JENKENS & GILCHRIST
3200 Allied Bank Tower
Dallas, Texas 75202
By:
-------------------------------
William M. Parrish
State Bar No. 15540325
Attorneys for Dupey
Management Corporation,
Michael J. Dupey, Individually, and
Patricia Dupey, Individually
JACKSON, WALKER, WINSTEAD
CANTWELL & MILLER
901 Main Street
6000 First RepublicBank Plaza
Dallas, Texas 75202
BY:
-------------------------------
Ralph E. Hartman
State Bar No. 09164000
Michael L. Knapek
State Bar No.11579500
Attorneys for Michaels Stores, Inc.
and B. B. Tuley
AGREED ORDER OF DISMISSAL - Page 2