EXHIBIT 4.16
SETTLEMENT AGREEMENT
--------------------
This agreement (the "Agreement") is made, effective as of May 14, 2001,
among International Minerals and Resources, S.A. ("IMR"), International Shipping
Company, S.A. ("ISC"), Shimon Katz ("Katz"), Bomar Resources Inc. ("Bomar"),
Bomar Resources, Inc. ("New Bomar"), Bomar Resources Holdings, Inc. ("BRHI") and
Enodis plc, formerly known as Berisford plc ("Berisford").
I. RECITALS
1.1 IMR and ISC are the plaintiffs in an action known as International
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Minerals and Resources et al. v. Pappas et al., Docket No. 87 Civ. 3988 (HB),
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brought in the United States District Court for the Southern District of New
York (the "IMR Case"), in which IMR and ISC recovered a judgment (the "IMR
Judgment") against several defendants, including Bomar. The IMR Judgment has
been affirmed on appeal to the United States Court of Appeals for the Second
Circuit, and is now final and non-appealable.
1.2 BRHI is the sole shareholder of Bomar and of New Bomar.
1.3 Bomar was formerly majority owned, directly or indirectly, by
Berisford.
1.4 Katz, Bomar and BRHI are plaintiffs in an action known as Katz et al.
-----------
v. Berisford International plc, Docket No. 96 Civ. 8695 (JGK), brought in the
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United States District Court for the Southern District of New York (the "Bomar
Case") against Berisford, in which judgment was entered in favor of Berisford as
against Katz and Bomar, and judgment was entered in favor of BRHI against
Berisford (the "BRHI Judgment"). IMR and ISC moved to intervene in the Bomar
Case, which motion was denied.
1.5 Berisford has appealed the BRHI Judgment to the United States Court of
Appeals for the Second Circuit, and BRHI and Bomar have cross-appealed. IMR and
ISC have also appealed from the denial of their motion to intervene. Those
appeals (collectively, the "BRHI Appeal") are now pending.
1.6 IMR and ISC are plaintiffs in another action, known as International
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Minerals and Resources et al. v. Berisford plc et al., Index No. 600278/00,
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pending in the Supreme Court of the State of New York, County of New York (the
"State Case"), in which IMR and ISC asserted various claims
against Katz, New Bomar, BRHI and Berisford. By stipulation, the claims
of IMR and ISC against Katz were dismissed with prejudice; their claims against
New Bomar were dismissed without prejudice; and a judgment was rendered in favor
of IMR and ISC against BRHI.
1.7 In the State Case, certain of the claims of IMR and ISC against
Berisford were dismissed by the court. IMR and ISC have appealed that dismissal
to the Appellate Division, First Department (the "State Appeal"), which appeal
is pending. The remaining claims of IMR and ISC against Berisford in the State
Case are still pending.
1.8 IMR, ISC, Katz, Bomar, New Bomar, BRHI and Berisford desire to settle
and compromise all claims between and among them, including the claims asserted
in the Bomar Case and the State Case, on the terms and conditions set forth
herein.
II. RELEASES
2.1 Simultaneously with the execution and delivery of this Agreement, IMR
and ISC will execute and deliver to Berisford a Release substantially in the
form annexed hereto as Exhibit A.
2.2 Simultaneously with the execution and delivery of this Agreement, IMR
and ISC will execute and deliver to Katz a Release substantially in the form
annexed hereto as Exhibit B.
2.3 Simultaneously with the execution and delivery of this Agreement, Katz,
Bomar, New Bomar and BRHI will execute and deliver to Berisford a Release
substantially in the form annexed hereto as Exhibit C.
2.4 Simultaneously with the execution and delivery of this Agreement, Katz,
Bomar, New Bomar and BRHI will execute and deliver to IMR a Release
substantially in the form annexed hereto as Exhibit D.
2.5 Simultaneously with the execution and delivery of this Agreement,
Berisford will execute and deliver to IMR a Release substantially in the form
annexed hereto as Exhibit E.
2.6 Simultaneously with the execution and delivery of this Agreement,
Berisford will execute and deliver to Katz a Release substantially in the form
annexed hereto as Exhibit F.
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III. DISMISSALS OF LITIGATION
3.1 Simultaneously with the execution and delivery of this Agreement, the
parties hereto will direct their respective attorneys in the Bomar Case to
execute and file with the Court a Stipulation substantially in the form annexed
hereto as Exhibit G.
3.2 Simultaneously with the execution and delivery of this Agreement, the
parties hereto will direct their respective attorneys in the BRHI Appeal to
execute and file with the Court a Stipulation substantially in the form annexed
hereto as Exhibit H.
3.3 Simultaneously with the execution and delivery of this Agreement, the
parties hereto will direct their respective attorneys in the State Case to
execute and file with the Court a Stipulation substantially in the form annexed
hereto as Exhibit I.
3.4 Simultaneously with the execution and delivery of this Agreement, the
parties hereto will direct their respective attorneys in the State Appeal to
execute and file with the Court a Stipulation substantially in the form annexed
hereto as Exhibit J.
IV. PAYMENTS
4.1 In consideration for the mutual promises contained in this Agreement,
Berisford will pay to IMR and ISC the sum of $10,000,000.00 (ten million U.S.
dollars) simultaneously with the execution and delivery of this Agreement (the
"First Payment"), but in no event later than May 14, 2001.
4.2 In further consideration for the mutual promises contained in this
Agreement, Berisford will also pay to IMR and ISC the additional sum of
$7,500,000.00 (seven million, five hundred thousand U.S. dollars) (the "Second
Payment") on or before 5:00 p.m. on October 1, 2001.
4.3 Each of the First Payment and the Second Payment shall be made by
certified check, bank cashier's check, or law firm trust account check, payable
to "McDermott, Will & Emery as Attorneys," and shall be delivered to McDermott,
Will & Emery, attention: Michael S. Sommer, Esq. or Elliot Silverman, Esq., 50
Rockefeller Plaza, New York, New York 10020.
4.4 To secure its obligation to make the Second Payment, Berisford will,
simultaneously with the execution and delivery of this Agreement, execute a
consent to the entry of judgment (the "Consent"),
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substantially in the form annexed hereto as Exhibit K, and deliver such consent
to McDermott, Will & Emery ("MWE"), as attorneys for IMR and ISC, who hereby
agree to hold such consent in escrow pending Berisford's timely delivery of the
Second Payment. Upon such timely delivery by Berisford of the Second Payment,
MWE shall forthwith deliver the Consent to Cadwalader, Wickersham & Taft ("CWT")
as attorneys for Berisford. If, however, Berisford does not make the Second
Payment within the time provided by paragraph 4.2 of this Agreement, MWE may
immediately, without any further notice to or demand upon Berisford, file the
Consent with the court named therein and take any further proceedings to obtain
and enforce a judgment against Berisford for the sum stated in the Consent,
including proceedings to enforce that judgment in any other court of competent
jurisdiction. Berisford hereby consents to the personal jurisdiction of the
court named in the Consent. IMR and ISC may also, in their sole discretion,
bring suit against Berisford in any court of competent jurisdiction for recovery
of the Second Payment. Should IMR or ISC bring such suit, it is agreed that the
prevailing party therein (as determined by the court) shall be entitled to
recover, in addition to all other relief to which it may be entitled, the
reasonable costs of suit, including reasonable attorneys' fees.
4.5 Berisford hereby warrants and represents to IMR and ISC that it has
sufficient assets to make the Second Payment; that it has no current plan to
file any proceedings under the bankruptcy laws of the United States or of
England between the signing of this Agreement and October 2, 2001; and that it
has no current expectation that any such proceedings will be commenced against
it involuntarily at any time prior to October 2, 2001. This warranty shall
survive the closing of the settlement contemplated by this Agreement.
V. OTHER TERMS
5.1 This Agreement is made pursuant to a settlement and compromise of
doubtful and disputed claims and any amounts received pursuant to this Agreement
represent the settlement and compromise of disputed claims, and are not to be
construed as an admission of liability or wrongdoing on the part of any of the
parties and all of the parties continue to deny liability for any and all claims
released hereby. This Agreement similarly shall not be construed as an admission
by any of the parties that their
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claims are without merit. All parties are compromising and settling their claims
and defenses solely to avoid further costs and expenses of litigation.
5.2 Except as expressly stated, this Agreement represents the entire
agreement between the parties hereto; supersedes any prior written or oral
statements or agreements with respect to the matters covered hereby; and the
terms hereof are contractual and not merely recitals. This Agreement may not be
altered, amended or modified except by a writing executed by the party to be
bound by such alteration, amendment or modification. The Exhibits hereto are
incorporated by reference into this Agreement.
5.3 The failure of a party hereto at any time or from time to time to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party hereto of any
condition or of any breach of any provision contained in this Agreement shall be
effective unless embodied in a writing signed by such party.
5.4 All terms and provisions of this Agreement shall be interpreted, to the
extent possible, so as to be valid and enforceable. If, however, any term,
condition or provision of this Agreement, or the application thereof to any
person or circumstance, shall be held to be invalid or unenforceable, the
remainder thereof, or the application of such term, condition or provision to
persons or circumstances other than those as to which it is held invalid, shall
be unaffected thereby, and each term, condition and provision of this Agreement
shall be enforced to the fullest extent permitted by law.
5.5 The use of the masculine, feminine or neuter gender herein shall not
limit any provision of this Agreement. The terms and language of this Agreement
are the result of negotiations between the parties hereto and there shall be no
presumption that any ambiguities in this Agreement should be resolved against
any party hereto. Any controversy concerning the construction of this Agreement
shall be decided neutrally, in light of its conciliatory purposes, and without
regard to authorship.
5.6 This Agreement may be executed by facsimile and in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
5.7 This Agreement shall be governed by the internal laws of the State of
New York, applicable to contracts made and performed entirely in the State of
New York, without regard to any principles of conflicts of laws.
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5.8 All rights and powers of the parties hereto shall inure to their
respective heirs, successors, assigns and transferees and all agreements shall
bind their respective heirs, successors, assigns and transferees.
5.9 Each of the parties to this Agreement shall promptly, and at no cost
or expense to any other party, execute any and all other corporate resolutions
or other documents reasonably requested and shall take such further steps as may
be reasonably necessary in order to complete the transactions contemplated by
this Agreement.
5.10 Each of the parties to this Agreement acknowledges that they have
consulted with counsel in connection with the negotiation and execution of this
Agreement, and that they have had this Agreement reviewed by such of their
attorneys and advisors as they deem necessary. The parties hereto further
acknowledge that they have: (i) made an independent investigation of such facts
as they deem necessary or appropriate in order to make the decision to enter
into this Agreement; (ii) made an independent determination to enter into this
Agreement; (iii) not relied upon any statement of, or information received from,
any other party or from counsel for any other party, that is not expressly
reflected herein in making such independent investigation and determination; and
(iv) there have been no written or oral representations made to induce them to
execute this Agreement that are not expressly reflected herein.
5.11 Any and all notices, consents, demands and instructions hereunder
required or permitted to be given or made by a party hereto to another party
hereto shall be in writing and shall be hand delivered, or delivered by
overnight express courier, at the following respective addresses:
To IMR, ISC or BRHI: c/o Atle Lygren
Chalet BALYBU
Ch-1936
Verbier, Switzerland
With a copy to: McDermott, Will & Emery
Attn: Elliot Silverman
or Michael S. Sommer
50 Rockefeller Plaza
New York, New York 10020
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To Katz, Bomar or New Bomar: c/o Shimon Katz
4750 Palisade Avenue
Bronx, New York 10471
With a copy to: McDermott, Will & Emery
Attn: Elliot Silverman
or Michael S. Sommer
50 Rockefeller Plaza
New York, New York 10020
To Berisford: Enodis plc
c/o Company Secretary
40-41 Conduit Street
London W1S 2YQ
ENGLAND
With a copy to: Cadwalader, Wickersham & Taft
Attn: Howard R. Hawkins, Jr.
100 Maiden Lane
New York, New York 10038
or at such other address as any party hereto may designate by notice to the
other parties hereto. All such notices, consents, demands and instructions shall
be deemed given (a) on the date delivered by hand, or (b) on the second business
day after delivery to the express courier.
5.12 Each party to this Agreement hereby warrants and represents to the
others that it is duly authorized to execute and deliver this Agreement. Each
individual executing this Agreement on behalf of any corporation or other entity
hereby warrants and represents to every party to this Agreement that he is duly
authorized to execute and deliver this Agreement on behalf of such corporation
or entity.
5.13 This Agreement shall become effective upon its execution and delivery
by all parties whose names appear on the signature pages hereof, and not before.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by a duly authorized representative thereof on the date of the day,
month and year first above written.
INTERNATIONAL MINERALS &
RESOURCES, S.A.
By: /s/ Atle Lygren
---------------------------------------------
Atle Lygren, Attorney-In-Fact
INTERNATIONAL SHIPPING COMPANY, S.A.
By: /s/ Atle Lygren
---------------------------------------------
Atle Lygren, Attorney-In-Fact
/s/
-------------------------------------------------
SHIMON KATZ
BOMAR RESOURCES INC.
By: /s/ Shimon Katz
----------------------------------------------
Shimon Katz, President
BOMAR RESOURCES, INC.
By: /s/ Shimon Katz
----------------------------------------------
Shimon Katz, President
BOMAR RESOURCES HOLDINGS, INC.
By: /s/ Atle Lygren
----------------------------------------------
Atle Lygren, President
ENODIS plc
By: /s/ David Hooper
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David Hooper, Company Secretary
With Respect to P. 4.4 only:
McDERMOTT, WILL & EMERY
As Escrow Agent
By: /s/ Elliot Silverman
---------------------------------
Elliot Silverman, A Member of the
Firm
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EXHIBIT A
---------
For good and sufficient consideration, receipt and sufficiency whereof
are hereby acknowledged, INTERNATIONAL MINERALS AND RESOURCES, S.A. and
INTERNATIONAL SHIPPING COMPANY, S.A. (collectively, "Releasors"), on their own
behalves and on behalf of their successors, assigns, officers, directors, parent
and subsidiary companies and agents, hereby fully release and discharge ENODIS
plc and each of its parent, subsidiary and affiliated companies (including,
without limitation, Erlanger Minerals and Metals, Inc. and Bomar International
Ltd.), officers, directors, agents and attorneys, and each of the respective
heirs, successors and assigns of each of the foregoing, from any and all claims,
demands, obligations, judgments and causes of action of any type and kind,
whether known or unknown, that Releasors, or either of them, now has, ever had,
or may have in the future, based upon any transaction, occurrence, event or
omission of any kind (including, without limitation, all claims asserted in the
action known as International Minerals and Resources, et al. v. Berisford plc,
-------------------------------------------------------------
et al., Index No. 600278/00, brought in the Supreme Court of the State of New
- ------
York, County of New York), except that nothing herein shall release Enodis plc
from its obligations under a certain Settlement Agreement with Releasors dated
as of May 14, 2001, including, without limitation, its obligations under
paragraphs 4.1, 4.2, 4.3, 4.4 and 4.5 thereof.
In witness whereof, Releasors have caused this Release to be executed by
their duly authorized representatives on May 14, 2001.
INTERNATIONAL MINERALS &
RESOURCES, S.A.
By: /s/ Atle Lygren
--------------------------------
Atle Lygren, Attorney-In-Fact
INTERNATIONAL SHIPPING COMPANY, S.A.
By: /s/ Atle Lygren
--------------------------------
Atle Lygren, Attorney-In-Fact
9
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On May 14, 2001, before me, the undersigned, personally
appeared Atle Lygren, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the persons upon behalf
of which the individual acted, executed the instrument.
/s/
----------------------------------
Notary Public
10
EXHIBIT C
---------
For good and sufficient consideration, receipt and sufficiency whereof
are hereby acknowledged, SHIMON KATZ, BOMAR RESOURCES INC., BOMAR RESOURCES,
INC. and BOMAR RESOURCES HOLDINGS, INC. (collectively, "Releasors"), on their
own behalves and on behalf of their successors, assigns, officers, directors,
parent and subsidiary companies and agents, hereby fully release and discharge
ENODIS plc and each of its parent, subsidiary and affiliated companies
(including, without limitation, Erlanger Minerals and Metals, Inc. and Bomar
International Ltd.), officers, directors, agents and attorneys, and each of the
respective heirs, successors and assigns of each of the foregoing, from any and
all claims, demands, obligations, judgments and causes of action of any type and
kind, whether known or unknown, that Releasors, or any of them, now has, ever
had, or may have in the future, based upon any transaction, occurrence, event or
omission of any kind (including, without limitation, all claims asserted in the
action known as Katz, et al. v. Berisford plc, Docket No. 96 Civ. 8695 (JGK),
-----------------------------
brought in the United States District Court for the Southern District of New
York).
In witness whereof, Releasors have caused this Release to be executed by
their duly authorized representatives on May 14, 2001.
/s/
------------------------------------
SHIMON KATZ
BOMAR RESOURCES INC.
By: /s/
---------------------------------
Shimon Katz, President
BOMAR RESOURCES, INC.
By: /s/
---------------------------------
Shimon Katz, President
BOMAR RESOURCES HOLDINGS, INC.
By: /s/
---------------------------------
Atle Lygren, President
11
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On May 14, 2001, before me, the undersigned, personally
appeared Shimon Katz and Atle Lygren, personally known to me or proved to me on
the basis of satisfactory evidence to be the individuals whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their capacities, and that by their signatures on the instrument,
the persons upon behalf of which the individuals acted, executed the instrument.
/s/
-----------------------------------
Notary Public
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EXHIBIT E
---------
For good and sufficient consideration, receipt and sufficiency
whereof are hereby acknowledged, ENODIS plc ("Releasor"), on its own behalf and
on behalf of its successors, assigns, officers, directors, parent and subsidiary
companies and agents, hereby fully releases and discharges International
Minerals and Resources, S.A. ("IMR"), International Shipping Company, S.A.
("ISC") and Bomar Resources Holdings, Inc., and each of their respective parent,
subsidiary and affiliated companies, officers, directors, agents and attorneys,
and each of the respective heirs, successors and assigns of each of the
foregoing, from any and all claims, demands, obligations, judgments and causes
of action of any type and kind, whether known or unknown, that Releasor now has,
ever had, or may have in the future, based upon any transaction, occurrence,
event or omission of any kind, except that nothing herein shall release IMR or
ISC from their obligations under a certain Settlement Agreement with Releasor
dated as of May 14, 2001.
In witness whereof, Releasor has caused this Release to be executed by its
duly authorized representative on May __, 2001.
ENODIS plc
By: /s/
----------------------------------------
David Hooper, Corporate Secretary
GREAT BRITAIN AND NORTHERN IRELAND )
LONDON, ENGLAND )
EMBASSY OF THE UNITED STATES OF AMERICA)
On May __, 2001, before me, the undersigned, personally appeared
David Hooper, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the person upon behalf of
which the individual acted, executed the instrument, and that such individual
made such appearance before the undersigned in London, England.
/s/
----------------------------------
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EXHIBIT F
---------
For good and sufficient consideration, receipt and sufficiency
whereof are hereby acknowledged, ENODIS plc ("Releasor"), on its own behalf and
on behalf of its successors, assigns, officers, directors, parent and subsidiary
companies and agents, hereby fully releases and discharges Shimon Katz, Bomar
Resources Inc. and Bomar Resources, Inc., and each of their respective parent,
subsidiary and affiliated companies, officers, directors, agents and attorneys,
and each of the respective heirs, successors and assigns of each of the
foregoing, from any and all claims, demands, obligations, judgments and causes
of action of any type and kind, whether known or unknown, that Releasor now has,
ever had, or may have in the future, based upon any transaction, occurrence,
event or omission of any kind.
In witness whereof, Releasor has caused this Release to be executed
by its duly authorized representative on May __, 2001.
ENODIS plc
By: /s/
--------------------------------------
David Hooper, Corporate Secretary
GREAT BRITAIN AND NORTHERN IRELAND )
LONDON, ENGLAND )
EMBASSY OF THE UNITED STATES OF AMERICA)
On May __, 2001, before me, the undersigned, personally appeared
David Hooper, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the person upon behalf of
which the individual acted, executed the instrument, and that such individual
made such appearance before the undersigned in London, England.
/s/
-----------------------------------
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EXHIBIT G
---------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SHIMON Y. KATZ, BOMAR RESOURCES :
HOLDINGS, INC. and BOMAR RESOURCES INC., :
: 96 Civ. 8695 (JGK)
Plaintiffs, :
: STIPULATION
v. : AND ORDER
: ---------
:
BERISFORD INTERNATIONAL, PLC, :
:
Defendant. :
:
:
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IT IS HEREBY STIPULATED and agreed, by and between the parties to
this action, through their undersigned counsel, as follows:
1. The judgment heretofore entered in this action shall be, and it
hereby is, VACATED; and
2. This action, including all claims and counterclaims which were or
could have been asserted therein, shall be, and it hereby is, DISMISSED WITH
PREJUDICE, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure,
without any award of costs or fees in favor of or against any party.
Dated: New York, New York
May 14, 2001
SIROTA & SIROTA LLP
By: /s/
-----------------------------------
Rachell Sirota (RS-5831)
Attorneys for Plaintiffs
110 Wall Street
New York, New York 10005
(212) 425-9055
15
CADWALADER, WICKERSHAM & TAFT
By: /s/
---------------------------------------------
Howard R. Hawkins, Jr. (HH-2787)
Attorneys for Defendant
100 Maiden Lane
New York, New York 10038
(212) 504-6000
SO ORDERED:
/s/
- --------------------------------
U.S.D.J.
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EXHIBIT I
---------
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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INTERNATIONAL MINERALS & :
RESOURCES, S.A. and INTERNATIONAL
SHIPPING COMPANY, S.A., : Index No.: 600278/00
Plaintiffs, :
STIPULATION AND ORDER
---------------------
vs. :
BERISFORD PLC, BOMAR RESOURCES :
HOLDINGS, INC., BOMAR RESOURCES,
INC., and SHIMON Y. KATZ, :
Defendants. :
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WHEREAS, no party to this action is an infant, an incompetent person for
whom a committee has been appointed, or a conservatee, and no person not a party
has an interest in the subject matter of this action,
IT IS HEREBY STIPULATED and agreed by and among International Minerals and
Resources, S.A. and International Shipping Company, S.A. (collectively,
"Plaintiffs"), and Shimon Y. Katz, Bomar Resources, Inc. and Bomar Resources
Holdings, Inc. (collectively, the "Bomar Defendants"), and defendant Berisford
plc ("Berisford"), as follows:
1. This action, including all claims asserted therein, shall be, and it
hereby is, DISMISSED WITH PREJUDICE and without any costs or disbursements;
2. The Judgment heretofore entered in this action in favor of the
Plaintiffs and against defendant Bomar Resources Holdings, Inc., shall be, and
it hereby is, VACATED.
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Dated: New York, New York
May 14, 2001
McDERMOTT, WILL & EMERY
By: /s/
-----------------------------------
Elliot Silverman, Esq.
Attorneys for Plaintiffs
50 Rockefeller Plaza
New York, New York 10020
(212) 547-5400
SIROTA & SIROTA LLP
By: /s/
-----------------------------------
Rachell Sirota, Esq.
Attorneys for the Bomar Defendants
110 Wall Street, 21st Floor
New York, New York 10005
CADWALADER, WICKERSHAM & TAFT
By: /s/
-----------------------------------
Howard Hawkins, Jr.
Attorneys for Defendant Berisford plc
100 Maiden Lane
New York, New York 10038
SO ORDERED:
/s/
- -------------------------------
J.S.C.