fl_8k0304ex.htm


    


    Exhibit
10.1


     

    


     

    


     

    SETTLEMENT
AGREEMENT


     

    This SETTLEMENT AGREEMENT (the
“Agreement”) is made and entered into as of March 3, 2008 by and among UBS
Securities LLC and UBS Loan Finance LLC (collectively, “UBS”), The Finish Line,
Inc. and Headwind, Inc. (collectively “Finish Line”) and Genesco Inc.
(“Genesco”).  UBS, Finish Line, and Genesco are individually referred
to herein as a “Party,” and collectively as the “Parties.”

    


     

    W
I T N E S S E T H


     

    WHEREAS, UBS has filed an
action captioned UBS
Securities LLC et al. v. The Finish Line, Inc. et al., Civil Action No.
07 Civ. 10382, in the United States District Court for the Southern District of
New York (the “New York Action”) against Finish Line and Genesco seeking costs
and a declaration that (1) UBS is relieved of its obligations under the Bank and
Bridge Facilities Commitment Letter by and between UBS and Finish Line, dated
June 17, 2007 (the “Commitment Letter”), as extended, and (2) the Commitment
Letter is void or voidable by UBS as a result of the failure of conditions to
closing and other requirements under the Commitment Letter; and

    


     

    WHEREAS, Finish Line has
asserted six counterclaims against UBS in the New York Action; and

    


     

    WHEREAS, there is also another
lawsuit currently pending among UBS, Genesco, and Finish Line in the Chancery
Court for the State of Tennessee, Twentieth Judicial District, Davidson County,
Part III, captioned Genesco
Inc. v. The Finish Line, Inc. et al., No. 07-2137-II(III) (the “Tennessee
Action”); and

     

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    


    WHEREAS, all Parties deny any
and all liability in connection with the subject matter of the New York Action
and the Tennessee Action; and

    


     

    WHEREAS, all Parties wish to
settle any and all claims between them, whether or not related to the New York
Action or the Tennessee Action in order to avoid the expense, inconvenience, and
distraction of further litigation; and

    


     

    NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties covenant and agree, in full and final settlement of
the New York Action and the Tennessee Action, whether in those Actions or
otherwise, and all claims that have or could have been asserted by UBS, Genesco,
and Finish Line, as follows:

    


     

    1.           Payment.  In
settlement of the claims asserted by the Parties and in consideration of the
termination of the agreements specified in Paragraph 3 herein, (1) UBS and
Finish Line, together, shall pay Genesco the sum of $175,000,000 (USD), to be
deposited into an account maintained by Genesco.  In addition, Finish
Line, as further consideration for settlement of the claims against it and
termination of the Merger Agreement, shall transfer to Genesco the number of
duly authorized, validly issued shares of Finish Line Class A Common Stock equal
to twelve percent (12%) of the post-issuance Finish Line common stock issued and
outstanding, such issued and outstanding shares constituting 6,518,971 shares
(“Shares”).  The aforementioned payments and transfers shall be made
no later than 5:00 p.m. Eastern Standard Time, Friday, March 7,
2008.  In addition, Finish Line, without undue delay, shall undertake
reasonable best efforts to cause such Shares to be registered and listed for
trading and, as soon as reasonably practicable thereafter, Genesco will use its
reasonable best efforts to distribute such

    


    


    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

    


    Shares to
its common shareholders.  There shall be no further payment from UBS
or Finish Line to Genesco or from any of the Parties to each
other.  All Parties shall bear their own legal fees, costs, and
expenses and waive any and all claims for reimbursement, indemnification or
contribution, except as provided in this Agreement.

    


    2.           Release of
Claims.  Except for the obligations set forth in this
Agreement, and except as provided in Paragraph 1 above, the Parties each hereby
release and forever discharge each other and the others’ respective members,
officers, directors, employees, attorneys, advisors, agents, parents,
subsidiaries, affiliates, heirs, executors, administrators, predecessors,
successors and assigns, from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims, and demands whatsoever, in law or equity, which
against each other they ever had, now have or hereafter can, shall or may have,
by reason of any matter, cause or thing whatsoever, from the beginning of the
world to the day this Agreement is executed by all Parties, including, but not
limited to those related, in any way, to the claims asserted or that could have
been asserted by the Parties in the New York Action or Tennessee
Action.

    


    It is the intention of the Parties to
extinguish all Released Claims and consistent with such intention, the Parties
hereby expressly waive their rights to the fullest extent permitted by law, to
any benefits of the provisions of Section 1542 of the California Civil Code or
any other similar state law, federal law or principle of common law, which may
have the effect of limiting the releases set forth herein.  Section
1542 of the California Civil Code provides:


    


    


    A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING

    


    


    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

    


    THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR.


    


    


    The
Parties acknowledge that they may discover facts in addition to or different
from those that they now know or believe to be true with respect to the subject
matter of the releases granted herein, but acknowledge that it is their
intention to fully, finally and forever settle, release and discharge any and
all claims hereby known or unknown, suspected or unsuspected, which do or do not
exist, or heretofore existed, and without regard to the subsequent discovery or
existence of such additional or different facts.


    


    


    3.           Termination of
Agreements.  Upon execution of this Agreement, all rights and
obligations under the Agreement and Plan of Merger by and among Finish Line and
Genesco, dated June 17, 2007 (the “Merger Agreement”), the Commitment Letter,
the Bank and Bridge Facilities Fee Letter, dated June 17, 2007 (“Fee Letter”),
the Engagement Letter between UBS Securities LLC and The Finish Line, Inc.,
dated June 17, 2007 (“Engagement Letter”), the Amendment to Bank and Bridge
Facilities Commitment Letter (“Amendment Letter”), dated October 12, 2007, the
letter agreement between UBS Securities LLC and The Finish Line, Inc., dated
October 3, 2006 (the “October 2006 M&A Engagement Letter”), the
Indemnification Agreement between UBS Securities LLC and The Finish Line, Inc.,
dated October 3, 2006 (the “October 2006 Indemnification Agreement”), the letter
agreement between UBS Securities LLC and The Finish Line, Inc., dated June 11,
2007, as amended (the “June 2007 M&A Engagement Letter”), the
Indemnification Agreement between UBS Securities LLC and The Finish Line, Inc.,
dated June 11, 2007 (the “June 2007 Indemnification Agreement”), and the
Confidentiality Agreement between UBS Securities LLC and The Finish Line, Inc.,
dated September 25, 2006 (the “Confidentiality Agreement”), running to any party
whatsoever, including third party

    


    


    
      
        
           


        

        
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    beneficiaries,
if any, whether current or future, intended or unintended, shall terminate
without cost or fee without further action by the respective parties thereto,
even if such rights were to have survived termination of any of the foregoing
agreements.

    


    4.           Dismissal of the
Litigation. 
Simultaneous with the execution of this
Agreement, the Parties’ respective counsel shall execute a Stipulation of
Dismissal dismissing the New York Action, with prejudice, pursuant to Rule
41(a)(1)(ii) of the Federal Rules of Civil Procedure.  The Parties’
respective counsel shall also execute a Stipulation of Dismissal dismissing the
Tennessee Action, with prejudice, pursuant to Rule 41 of the Tennessee Rules of
Civil Procedure.  Counsel for Finish Line shall hold such stipulations
in escrow pending receipt by Genesco of the funds and stock referenced in
Paragraph 1, whereupon Finish Line shall cause such stipulations to be filed
with the New York and Tennessee courts, respectively.  Genesco will
not oppose any request or motion to vacate the Court’s December 27, 2007 and
January 2, 2008 Orders in the Tennessee Action.

    


    5.           Discovery
Materials.  Upon the execution of this Agreement by all
Parties, and unless otherwise prohibited by law, each Party shall destroy or
return to the others all documents and other materials that the other Party
produced, whether in due diligence, in contemplation of the merger, in the New
York or Tennessee Actions, or for any other purpose.  If a Party
elects to destroy rather than return documents, the documents shall be destroyed
no later than thirty (30) days following the dismissal of the Tennessee Action
and the New York Action and any related shareholder litigation, government
investigation or regulatory proceeding.  The Party destroying the
documents shall immediately provide written confirmation that the documents have
been destroyed.

    


    


    
      
        
           


        

        
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    6.           No Assignment of Claims or
Interest.   The Parties represent and warrant that they
have not assigned and will not assign any claims covered by this Agreement or
any interest therein to any other person or entity, and that there are no liens
or attachments on the proceeds to be paid under this Agreement or any of the
claims covered by this Agreement.  In the event any person or entity
shall claim a lien or interest in the monies paid to any party under this
Agreement, Genesco shall indemnify and defend UBS and Finish Line for and
against any claims asserted by such person or entity against UBS or Finish Line,
and the existence of such lien or interest shall not affect in any way the terms
and effect of the releases that Genesco has granted UBS and Finish Line in this
Agreement.  Similarly, UBS and Finish Line, respectively, shall
indemnify and defend Genesco for and against any claims asserted against Genesco
by any person or entity claiming to have had any lien or legal interest in the
proceeds UBS and Finish Line respectively paid to Genesco under this Agreement
that existed prior to the payment of the proceeds.  The existence of
such pre-existing lien or interest shall not affect in any way the terms and
effect of the releases that UBS and Finish Line have granted Genesco in this
Agreement

    


    7.           No Admission of Liability or
Wrongdoing.  This Settlement Agreement is made solely for the
purposes of resolving the differences between the Parties to it, and nothing in
this Agreement shall be construed as or constitute an admission of liability by,
or evidence of damage to, any Party hereto, all liability being expressly
denied.  Furthermore, nothing in this Agreement shall be construed as
or constitute an admission of the validity or enforceability of any claims or
demands that were made or could have been made in the New York or Tennessee
Actions.  This Agreement shall not be admissible in any legal
proceeding except to enforce its terms.

    


    


    
      
        
           


        

        
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    8.           Standstill
Agreement.  Genesco and Finish Line will not, and will not
cause their affiliates to assist, provide, or arrange financing to or for others
or encourage others to, directly or indirectly, acting alone or in concert with
others (whether publicly or privately), for a period of three years from the
date of this Settlement Agreement, unless specifically requested in writing in
advance by Genesco or Finish Line:  (i) acquire or agree, offer, seek
or propose to acquire (or request permission to do so) ownership (including, but
not limited to, beneficial ownership as defined in 13d-3 under the Securities
Exchange Act of 1934, as amended) of any of the assets, indebtedness or business
of the other or any subsidiaries thereof or any securities of the other or any
subsidiary or affiliate thereof or any rights or options to acquire such
ownership (including from a third party), including without limitation, by means
of tender or exchange offer, (ii) offer, seek or propose a merger,
consolidation, recapitalization, reorganization, business combination or similar
transaction, or any other extraordinary transaction with or involving the other
or any subsidiary or affiliate thereof, or any successor entities thereto, (iii)
seek or propose to influence or control the management, the Boards of Directors,
or the policies of the other or any subsidiary or affiliate thereof or to obtain
representation on the other’s Boards of Directors, or solicit, or participate in
the solicitation of, any proxies or consents with respect to any securities of
the other or any subsidiary or affiliate thereof, or (iv) enter into any
discussions, negotiations, arrangements or understandings with any third party
with respect to any of the foregoing.

    


    9.           Tax
Issues.  Genesco agrees that neither UBS nor Finish Line shall
have any responsibility whatsoever to any federal, state or local taxing
authority for any tax liability or consequences, if any, to Genesco or any other
person arising from the payment to Genesco of the

    


    


    
      
        
           


        

        
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    consideration
provided for herein.  Genesco will provide both UBS and Finish Line
with a fully-executed W-9 upon the complete execution of this Agreement by all
Parties.

    


    10.           Binding Effect. This Agreement shall be
binding upon and shall inure to the benefit of each of the Parties hereto and
their heirs, executors, administrators, representatives, agents, successors,
assigns, and any entity into or with which any party hereto may merge or
consolidate.

    


    11.           Exception for Share
Interest:  Genesco represents to Finish Line that it is
acquiring the Shares for investment purposes and has no present intent to sell,
distribute or otherwise transfer the Shares acquired pursuant to this Agreement
other than as a distribution to its shareholders after the Shares have been
properly registered under the Securities Act of 1933, as amended (the “1933
Act”) and applicable state securities laws.  Genesco has been advised
and fully understands that the Shares being issued to it pursuant to this
Agreement by Finish Line have not been registered under the 1933 Act by reason
of an exemption under the 1933 Act which depends upon its investment intent
regarding the securities being purchased.  Genesco further represents
and warrants that it has been advised about, is familiar with, and has had
access to all information regarding the affairs of the Finish Line it deems
necessary to enter into this Agreement. The stock certificate(s) for the shares
to be issued to Genesco pursuant to this Agreement shall bear the following
legend:

    


    The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or the securities laws of any state. As a
result, the securities represented by this certificate may not be sold or
transferred in the absence of registration under such laws or an opinion from
legal counsel satisfactory to the Corporation that such registration is not
required.

    


     

    12.           Entire
Agreement. This Agreement contains
the entire understanding of the Parties, except for any agreement that may be
agreed to by Finish Line and UBS regarding

    


    


    
      
        
           


        

        
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    the
apportionment of the $175 million to be paid to Genesco.  There are
otherwise no restrictions, promises, representations, warranties, covenants, or
undertakings concerning the subject matter of this Agreement other than those
expressly set forth herein.  This Agreement supersedes all prior
agreements and understandings between or among any of the Parties with respect
to the subject matter hereof.

    


    13.           Amendments.  Neither
this Agreement nor any of its terms may be modified or amended except in writing
executed by all of the Parties with the same formalities as this
Agreement.

    


    14.           No
Waiver.  Failure by any Party to resort to any remedy referred
to herein, or to which the Party may otherwise be entitled, shall not be
construed as a waiver of any other right or remedy to which such Party may be
entitled under this Agreement or otherwise.  No written waiver signed
by all of the Parties shall excuse the performance of an act other than those
specified therein.  The failure of any Party to enforce, or delay by
any Party in enforcing, any of its rights under this Agreement shall not be
deemed a continuing waiver or modification thereof and any Party may, within the
time provided by applicable law, commence appropriate legal proceedings or
validly existing, as provided herein to enforce any and all of such
rights.

    


    15.           Authorization. The parties hereto
expressly warrant and represent that the execution of this Agreement is fully
authorized by each of them; that each of the persons executing this Agreement
has the necessary and appropriate authority to do so; that there are no pending
agreements, transactions, or negotiations to which either of them is a party
that would render this Agreement or any part thereof void, voidable or
unenforceable; and that no authorization, consent or approval of any
governmental entity is required to make this Settlement

    


    


    
      
        
           


        

        
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    Agreement
valid and binding upon them.  UBS, Finish Line, and Genesco expressly
warrant and represent that they are corporations in good standing in their
respective places of domicile.

    


    16.           Representation By
Counsel. Each of the Parties also
represents and agrees that it or he has been represented by competent counsel in
the making of this Agreement, and that such counsel, and the Party itself or
himself, has reviewed this Agreement in its entirety prior to its
execution.  Each of the parties hereto warrants, represents, and
agrees that it is entering into this Agreement with full knowledge of the terms
and provisions of this Agreement.

    


    17.           Joint
Drafting.  The Parties agree that this Agreement shall be
deemed to have been jointly drafted by them, so that any ambiguity shall not be
construed against any Party on the basis of the identity of the drafter of any
provision of this Agreement or the Agreement as a whole.

    


    18.           Severability. If any
provision of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that
in the event Paragraph 2 above (Release of Claims) is held, in whole or in part,
to be invalid, void or unenforceable as to any claims that were or could have
been asserted by Genesco, then Genesco shall be obligated to return immediately
to UBS and Finish Line the full amount of the payment and stock transferred to
it set forth in Paragraph 1 above.

    


    19.           Counterparts.  This
Agreement may be executed in any number of duplicate originals and each such
duplicate original shall be deemed to constitute but one and the same
instrument.

    


    


    
      
        
           


        

        
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    20.           Headings.  The
headings set forth in this Agreement are for convenience of reference only and
shall not be deemed a part of, or considered, in construing or interpreting this
Agreement.

    


    21.           Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to choice of
law and conflicts of law principles, to the extent that federal law does not
apply.  Any action based on this Agreement or to enforce any of its
terms shall be brought in the United States District Court for the Southern
District of New York, which shall retain exclusive venue and exclusive
jurisdiction over all such disputes.  The parties hereto consent to
the personal jurisdiction and venue of the federal courts in the State of New
York.

    


    22.           Breach.  Each
Party acknowledges that each other Party is relying on this Agreement and the
releases contained herein in agreeing to the Settlement.  No breach by
any Party of any undertaking hereunder shall revoke or terminate the
undertakings and releases hereunder in favor of any non-breaching Party, and
each Party agrees that the only remedy available for breach of any undertaking
and release hereunder shall be for money damages or specific performance against
the breaching Party only.

    


    


    
      
        
           


        

        
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    IN
WITNESS WHEREOF, it is hereby agreed to by the undersigned as of March 3,
2008.

    


    


    
      	
              By:

            	/s/
      Alan
      H. Cohen	 
      	
              By:

            	/s/
      Hal
      N. Pennington
	 
      	
              Alan
      H. Cohen

            	 
      	 
      	
              Hal
      N. Pennington

            
	 
      	
              President
      and CEO

            	 
      	 
      	
              Chairman
      & CEO

            
	 
      	
              The
      Finish Line, Inc.

            	 
      	 
      	
              Genesco
      Inc.

            


    

     

    


    


    I declare
under penalty of perjury that the foregoing is true and
correct.  Executed on March 3, 2008

    


     

    


    
      	
              By:

            	/s/
      Steven
      D. Smith	 
      	 
      	 
      
	 
      	
              Steven
      D. Smith

            	 
      	 
      	 
      
	 
      	
              Joint
      Head of Global Leverage Finance

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              and

            	 
      	 
      	 
      


    

    


     

    


    I declare
under penalty of perjury that the foregoing is true and
correct.  Executed on March 3, 2008

    


     

    


    
      	
              By:

            	/s/
      James
      E. Odell	 
      	 
      	 
      
	 
      	
              James
      E. Odell

            	 
      	 
      	 
      
	 
      	
              General
      Counsel, the Americas

            	 
      	 
      	 
      
	 
      	
              UBS
      Securities LLC and UBS Loan Finance LLC

            	 
      	 
      	 
      


    

    


    


     

     

     

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