EXHIBIT 10.24
AGREEMENT FOR TERMINATION OF, AND WITHDRAWAL FROM, PARTNERSHIP
THIS AGREEMENT FOR TERMINATION OF, AND WITHDRAWAL FROM, PARTNERSHIP (the
"Agreement") is entered into as of the 30th day of June, 2001, by and among (i)
Encore Venture Partners II (Texas), L.P., a Delaware limited partnership (the
"Partnership"); (ii) EVP Capital, L.P., a Delaware limited partnership
("Capital"), Encore Management, LLC, a Delaware limited liability company
("Management"), and Richard Beckwitt, a Texas resident ("Beckwitt"), (Capital,
Management and Beckwitt are herein collectively referred to as the "Capital
Parties"); and (iii) GP-Encore, Inc., an Arizona corporation (formerly known as
Encore I, Inc.) ("GP-Encore"), and Encore II, Inc., an Arizona corporation (the
"Limited Partner"), (GP-Encore and the Limited Partner are herein collectively
referred to as the "Horton Parties").
RECITALS
WHEREAS, Management and Beckwitt are the only partners of Capital, and
Beckwitt is [the sole /a] member of Management;
WHEREAS, Capital and GP-Encore, together with the Limited Partner and
Beckwitt, have formed, as of March 21, 2000, the Partnership. The Partnership is
governed by, and operated pursuant to, the terms and provisions of a Limited
Partnership Agreement, dated as of March 21, 2000 (the "Partnership Agreement"),
among Capital, GP-Encore, Beckwitt and the Limited Partner;
WHEREAS, the parties hereunto desire that the Partnership be terminated as
of June 30, 2001;
WHEREAS, the parties hereto desire to set forth their agreement as to the
remaining respective obligations, financial or otherwise, of the partners under
the Partnership Agreement; and
WHEREAS, the parties hereto believe that it is in their best interests that
the Partnership's affairs be settled pursuant to this Agreement and that the
winding up of the Partnership pursuant to the Partnership Agreement be conducted
by GP-Encore solely for the benefit of GP-Encore and the Limited Partner;
NOW, THEREFORE, in consideration of the foregoing and the agreements
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
AGREEMENT
1. The termination date for all purposes of the Partnership Agreement shall
be June 30, 2001 (the "Termination Date"), notwithstanding the notice given
by GP-Encore to Capital, Beckwitt and the Limited Partner on June 29, 2001,
which notice is hereby
superceded, and the 180-day notice requirement set forth in Section 6.1 of
the Partnership Agreement is hereby waived.
2. Effective as of the Termination Date, Capital and Beckwitt hereby
withdraw as a general partner and limited partner, respectively, of the
Partnership, and GP-Encore hereby consents to the withdrawal. The Capital
Parties hereby relinquish any right, title or interest under the
Partnership Agreement, as a partner of the Partnership, or in or to the
Partnership or Partnership property or other assets, including, but not
limited to, any general or limited partner interest in the Partnership, and
hereby waive any and all rights they may have to receive any distribution
of property or other assets from the Partnership or any payment of fees and
expenses by the Partnership, whether on account of their withdrawal, the
winding up or liquidation of the Partnership or otherwise. The withdrawal
and relinquishment provided in this paragraph 2, however, shall not
prohibit claims for indemnification from the Partnership in accordance with
Section 2.8(a) and (b) of the Partnership Agreement.
3. Capital and Management shall proceed promptly to change their names, all
related e-mail addresses and any URL they may have so as to not use the
name "Encore" or any name which is deceptively similar to "Encore." The
Capital Partners hereby assign to GP-Encore any right, title or interest
they may have in such name or any variation thereof.
GENERAL PROVISIONS
4. Each of the parties hereto represents and warrants that any individual
signing as, for or on behalf of the party (a) has full and complete legal
right and authority to act as provided herein and to bind the party and all
other persons or entities with any right, title or interest through the
party, and (b) has sufficient knowledge about the investments made by the
Partnership and their prospects to enable the party to evaluate the merits
of entering into this Agreement.
5. The parties hereto have entered into this Agreement in reliance solely
upon the representations, warranties and agreements set forth in this
Agreement and not upon any other representation or statement, written or
oral.
6. If any provision, or part thereof, of this Agreement is prohibited by
law or otherwise determined to be invalid or unenforceable by a court or
arbitrator of competent jurisdiction, such provision, or part thereof,
shall not affect the validity of the remaining provisions, or parts
thereof.
7. Any modification or waiver of any provision of this Agreement, or any
consent to any departure from the terms of this Agreement, shall not be
binding unless in writing and signed by the party against whom such
modification or waiver is sought to be enforced.
8. This Agreement contains the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes any prior
understandings and agreements of the parties with respect to the subject
matter hereof.
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9. Each party hereto agrees to execute any and all documents reasonably
required to effectuate the purposes and intent of this Agreement, now or in
the future.
10. This Agreement shall be binding upon, and inure to the benefit of, each
party hereto and their respective heirs, administrators, executors,
personal representatives, successors, assigns, and all persons or entities
acting in concert with any of them.
11. Should any dispute arise between the parties hereto relating to this
Agreement, its terms, or the performance or non-performance of any
obligation undertaken by the parties, or any of them, pursuant to this
Agreement, the dispute shall be resolved by binding arbitration in Fort
Worth, Texas, or in such other location as mutually agreed to by the
parties, in accordance with the then applicable rules of the American
Arbitration Association, and in no other manner. The decision and award of
the arbitrator shall be final and binding, and judgment thereon may be
entered in any state or federal court with jurisdiction over the parties.
The arbitrator shall have no authority to add to, subtract from, or modify
any provision of this Agreement.
12. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD APPLY
ANY OTHER LAW.
13. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which constitute one and the
same instrument.
Signatures Appear On The Following Pages
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Executed as of the date first above written.
THE PARTNERSHIP:
ENCORE VENTURE PARTNERS II
(TEXAS), L.P.
By: Evp Capital, L.P.,
General Partner
By: Encore Management, LLC.,
General Partner
By: /s/ RICHARD BECKWITT
----------------------------
Name: Richard Beckwitt
Title: Managing Member
By: GP-Encore, Inc., General Partner
By: /s/ DONALD R. HORTON
------------------------------
Name: Donald R. Horton
Title: Chairman
THE CAPITAL PARTIES:
EVP CAPITAL, L.P.
By: Encore Management, LLC.,
General Partner
By: /s/ RICHARD BECKWITT
----------------------------
Name: Richard Beckwitt
Title: Managing Member
By: Richard Beckwitt, Limited Partner
/s/ RICHARD BECKWITT
--------------------------------
Richard Beckwitt
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
ENCORE MANAGEMENT, LLC
By: /s/ RICHARD BECKWITT
--------------------------------
Name: Richard Beckwitt
Title: Managing Member
/s/ RICHARD BECKWITT
-----------------------------------------
RICHARD BECKWITT, a Texas resident
THE HORTON PARTIES:
GP-ENCORE, INC.
By: /s/ DONALD R. HORTON
--------------------------------
Name: Donald R. Horton
Title: Chairman
ENCORE II, INC.
By: /s/ WILLIAM K. PECK
--------------------------------
Name:
Title:
SETTLEMENT AGREEMENT AND MUTUAL RELEASE