Exhibit 10.1 SETTLEMENT AGREEMENT ANDMUTUAL RELEASE

 

(a)

Release of Escrow Funds.  Contemporaneous with the execution of this Settlement Agreement by all Parties, Clark and the Representative shall execute and deliver to the Escrow Agent  a Mutually Agreed Distribution of Escrow Funds Certificate (the “Escrow Certificate”), a copy of which is attached hereto as Exhibit 1, instructing the Escrow Agent to release $3,763,660.47 to Sellers and $1,288,232.78 to Clark.

 

(b)

Dismissal of Arbitration.  Immediately following the execution of this Settlement Agreement by all Parties, the Parties through their respective counsel shall execute and file an Agreed Order of Dismissal, a copy of which is attached hereto as Exhibit 2, dismissing the Arbitration with prejudice.

 

(a)

Releases by Clark Parties.  Except for the obligations contained in this Settlement Agreement and those noted in Subparagraph 3(c) below, each of the Clark Parties, in their respective individual, representative, trustee and/or fiduciary capacities, forever releases and discharges each of the Selling Parties, in their respective individual, representative, trustee and/or fiduciary capacities, and all of their respective heirs, executors, administrators, assigns, officers, directors, members, employees, agents, attorneys, divisions, parents, affiliates, subsidiaries and related companies of and from any and all claims, demands, suits, damages, sums of money, expenses, costs, actions, causes of action, accounts, reckonings, controversies, bonds, bills, specialties, contracts, covenants, agreements, promises, variances, trespasses, judgments, extents, executions, undertakings, debts, dues, attorneys’ fees, obligations and liabilities of any nature, whatsoever, known or unknown, in law or in equity, which the Clark Parties or any of their respective heirs, executors, administrators, successors or assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of time to the present.

 

(b)

Releases by Selling Parties.  Except for the obligations contained in this Settlement Agreement and those noted in Subparagraph 3(c) below, each of the Selling Parties, in their respective individual, representative, trustee and/or derivative capacities, forever releases and discharges each of the Clark Parties, in their respective individual, representative, trustee and/or fiduciary capacities, and all of their respective heirs, executors, administrators, assigns, officers, directors, members, employees, agents, attorneys, divisions, parents, affiliates, subsidiaries and related companies of and from any and all claims, demands, suits, damages, sums of money, expenses, costs, actions, causes of action, accounts, reckonings, controversies, bonds, bills, specialties, contracts, covenants, agreements, promises, variances, trespasses, judgments, extents, executions, undertakings, debts, dues, attorneys’ fees, obligations and liabilities of any nature, whatsoever, known or unknown, in law or in equity, which the Selling Parties or any of their respective heirs, executors, administrators, successors or assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of time to the present.

 

(1)

Individual Agreements.  Notwithstanding the foregoing, nothing herein is intended to or should be construed as limiting or otherwise altering the rights or obligations any Party has or may have as a result of its being a party to any of the following agreements:

 

(i)

Employment Agreement, dated as of January 1, 1998, between David Gillis and The Clark Group, Inc., including but not limited to the Confidentiality Agreement executed by David Gillis in favor of The Clark Group, Inc. and referenced as Exhibit C thereto;

 

(ii)

Separation Agreement and General Release between The Clark Group, Inc., its parent, subsidiaries, affiliates, successors, assigns, owners and agents (collectively "the Company") and John Barry (“Barry”), dated as of May 27, 2008, including but not limited to all incorporated continuing obligations arising under the Employment Agreement between the Clark Group and Barry dated January 1, 1998, and the Confidentiality Agreement executed by Barry in favor of the Clark Group dated April 17, 1998;

 

(iii)

Confidential Separation Agreement and General Release, dated as of October 21, 2009, between Timothy Teagan (“Teagan”) and The Clark Group, Inc., its subsidiaries and affiliated entities;

 

(iv)

Independent Consulting Agreement, dated as of October 21, 2009, between Teagan and The Clark Group, Inc.; and

 

(v)

Continuing and Post-employment obligations arising under the Employment Agreement dated January 1, 1998 between Teagan and The Clark Group, Inc. and the Confidentiality Agreement executed by Teagan dated February 28, 1995.

 

(2)

Stock Purchase Agreement.  Notwithstanding the foregoing, nothing herein is intended to or should be construed as limiting or otherwise altering the rights or obligations any Party has or may have under Sections 1.12 (Certain Seller Matters); 5.6(a) (Confidentiality; Access to Information); 5.20 (Noncompete; Nonsolicit; Nonhire); 5.23 (Books & Records); Article IX (Defined Terms) of the Stock Purchase Agreement to the extent said defined terms are pertinent to Sections 1.12, 5.6(a) 5.20 and 5.23 and Article X of the Stock Purchase Agreement; and Article X (General Provisions) of the Stock Purchase Agreement, except that Section 10.12 (Arbitration) shall apply only to disputes that may arise under the aforesaid provisions of the Stock Purchase Agreement and not to any disputes that may arise under this Settlement Agreement.  To the extent any provision of the Stock Purchase Agreement is in conflict with the terms of this Settlement Agreement, the provisions of this Settlement Agreement shall control.

 

(3)

Acknowledgement of No Claims.  Each Party represents and warrants that, as of the date of this Settlement Agreement, it does not know or have reason to believe that any other Party has committed or is committing a breach of any of the agreements referenced in Subparagraph 3(c)(1) or any of the sections of the Stock Purchase Agreement referenced in Subparagraph 3(c)(2).

TO:

Continental Stock Transfer & Trust Co

Att:

Frank D. Paolo, CFO