EXHIBIT 10(l)
SETTLEMENT AGREEMENT
AND RELEASE
This Settlement Agreement and Release (hereinafter "Agreement") is entered
into this 22nd day of February, 2005 by and between Xxxxxx X. Xxxxxxx
("Xxxxxxx") and Xxxxx Industries, Inc. and its subsidiaries ("Xxxxx" or
"Company") with respect to all matters from the beginning of the world to the
date of this Agreement, including certain litigation threatened between these
parties. (Wiskind and the Xxxxx are collectively "Parties.")
WITNESSETH:
WHEREAS, Wiskind is now and has been an employee of Xxxxx, serving most
recently in the capacity of Vice Chairman and Secretary and is a member of
Xxxxx' Board of Directors; and
WHEREAS, Wiskind has brought forward to the Company assertions relating to
his employment relationship with Xxxxx and has threatened to file a lawsuit or
administrative action (or both) concerning these employment related issues
pursuant to federal, state and local laws including, but not limited to, rights
and claims he may have under the Age Discrimination in Employment Act, 29 U.S.C.
Section 621, et seq.; and
WHEREAS, Xxxxx denies any and all liability whatsoever to Wiskind and
makes no concessions as to the validity of any claims or disputes which Xx.
Xxxxxxx may claim to have; and
WHEREAS, Wiskind acknowledges that except as otherwise provided by this
Agreement, he has been paid all wages, incentives, bonuses, vacation pay, and
other benefits owed to him in consideration of and as compensation for his
services as an employee earned prior to the Effective Date of this Agreement;
WHEREAS, the Parties wish to avoid the uncertainty, expense and
inconvenience of litigation; and
WHEREAS, the Parties are desirous of resolving all legal proceedings,
claims and issues that Wiskind has arising out of Wiskind's employment with
Xxxxx and the separation therefrom.
NOW, THEREFORE, for good and valuable consideration, including the
releases and covenants contained herein, the sufficiency and receipt of which is
hereby acknowledged, Wiskind and Company agree as follows:
1. In consideration for this Agreement and in settlement of the
Litigation, Company will pay to Wiskind the sum of Nine Hundred Seventy Four
Thousand Dollars ($974,000.00) which shall be payable and allocated as follows:
(a) On the Effective Date of this Agreement, $504,000.00
less all withholding deductions for applicable federal,
state and local income and employment taxes will be paid
to Wiskind as earnings. A 2005 Form W-2 will be issued
to Wiskind for this amount.
(b) On the Effective Date of this Agreement, $200,000.00
will be paid to Wiskind as a non-wage payment as
consideration to support the restrictive covenants
contained herein. Xxxxx will not deduct or withhold any
sum of money from this amount and a 2005 Form 1099 will
be issued to Wiskind for this amount.
(c) On the Effective Date of this Agreement, an amount of up
to $20,000 will be paid to J. Xxxxxxx Xxxxxx and Xxxxxxx
Xxxxx for Xxxxxxx'x attorneys' fees and litigation
expenses. Xxxxx will not deduct or withhold any sum of
money from this amount, and a 2005 Form 1099 will be
issued to Wiskind's attorneys for this amount. These
fees include any legal fees Wiskind may have been able
to recover under the American Job Creation Act.
(d) Starting on May 1, 2005, Wiskind will begin to receive
monthly payments under a second SERP agreement between
Xxxxx and Xxxxxxx of even date in the total amount of
$250,000.00 payable over ten years and this will be paid
to Wiskind as a non-wage payment. Xxxxx will not deduct
or withhold any sum from this amount and the necessary
Form 1099s will be issued to Wiskind for the amounts
paid under this SERP agreement.
Wiskind acknowledges, warrants and agrees that interest on the settlement amount
will not accrue.
2. Wiskind acknowledges, warrants and agrees that payments pursuant to
this Agreement shall not be construed as an admission of the validity of his
claims, assertions or disputes nor as
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an admission of any kind by Company, that Xxxxx continues to deny any and all
liability to Wiskind, and that the sole purpose of this Agreement is to avoid
the expense and inconvenience of the Litigation.
3. Wiskind acknowledges, warrants and agrees that he alone will be
responsible for all taxes and other withholdings, including but not limited to
self-employment taxes, applicable to the compensation and benefits paid by Xxxxx
under this Agreement, except for any amounts withheld as otherwise specified in
paragraph 1(a) above. Wiskind is relying on the advice of his professional
advisors regarding their allocation and the tax treatment of the settlement sum
and is not relying on any representation of Company. Wiskind agrees and
covenants to indemnify and hold Company harmless from and against all
liabilities, costs, expenses (including but not limited to attorney fees),
penalties and interest incurred by Xxxxx by reason of any claims made by the
Internal Revenue Service, the Ohio Tax Board or any other taxing authority
relating to any sum paid under this Agreement.
4. Wiskind acknowledges, warrants and agrees that this settlement
specifically includes any amounts which may be outstanding, unpaid or
reimbursable by reason of subrogation or lien, which amounts are to be paid or
reimbursed out of the proceeds of this settlement, and Wiskind agrees and
warrants to defend and hold harmless Company as to any such claims.
5. Under no circumstances shall Wiskind be reinstated to employment with
Xxxxx. It is further agreed that Wiskind shall not seek or apply for future
employment with Xxxxx or any related or affiliated entity.
6. Wiskind agrees to voluntarily relinquish his current position as an
employee and to voluntarily retire at 5:00 P.M. on April 20, 2005, and
acknowledges that his term as a member of the Xxxxx Board of Directors ends
effective the morning of April 20, 2005.
7. Wiskind, in consideration of this Agreement, jointly, severally and on
behalf of his
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respective heirs, executors, executrixes, administrators, administratrixes,
predecessors, successors, subrogees, assigns and all persons acting by, through,
under or in concert with him, or otherwise legally entitled to recover through
him (collectively "Releasors") hereby fully and forever releases, acquits and
discharges Company and its past, present and future agents, employees (both in
their official and individual capacity), partners, owners, directors, officers,
trustees, receivers, shareholders, principals, agents, representatives,
attorneys, insurers, reinsurers, insurance agents, insurance brokers, claims
professionals, joint ventures, successors, predecessors, parent, subsidiary
and/or affiliate corporations and assigns (collectively "Released Parties" and
in the singular "Released Party") from any and all claims, liabilities and
damages, of whatever kind and nature, which he has, had or may have had against
any Released Party, whether known or unknown, whether arising at law, in equity
or otherwise, from the beginning of the world to the date of this Agreement.
This provision encompasses, but is not limited by, claims associated with or
arising from any threatened litigation and/or from Wiskind's employment with
Xxxxx, the separation of his employment with Xxxxx and/or the treatment of him
by employees of Xxxxx, persons affiliated with Xxxxx in any capacity and/or
Released Party(ies), whether known or unknown, including, but not limited to (a)
any claim of discrimination on any basis, including race, color, national
origin, religion, sex, age, handicap or disability, or sexual orientation
arising under any federal, state, or local statute, ordinance, order or law
including, but not limited to, Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, as amended by the Older
Workers Benefit Protection Act, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, the Ohio Civil Rights Act (Ohio Rev.
Code Chapter 4112.01 et seq.); (b) any claim of contract or promise, express or
implied, or any other term or condition of Wiskind's employment; (c) any claim
for promissory estoppel, negligence, wrongful discharge, constructive discharge,
violation
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of public policy, retaliation, intentional infliction of emotional distress or
loss of consortium; (d) any claims for wages, recall, reinstatement, seniority,
back-pay, front-pay, future damages, lost benefits, compensatory damages,
punitive damages, attorney fees, costs, expenses, interest, and (e) any other
federal, state or local statutory or common law claims arising out of Wiskind's
employment with Xxxxx and/or the termination of such employment. Every claim of
whatsoever description arising from the beginning of time up to the effective
date of the Agreement, including but not limited to, claims arising from
Wiskind's employment and the termination thereof, is expressly released by
Wiskind against Released Parties, it being fully understood and agreed that
payment and acceptance of said sum is in full accord and satisfaction of all
matters and that the payment of said sum is not an admission of liability by
Company.
8. This Release shall not have any effect on Wiskind's rights: (a) under
the existing $750,000 SERP agreement which will vest upon Wiskind's retirement
and will be paid under the terms of that plan; (b) to receive those benefits
provided to employees generally upon their retirement, as those retirement
benefits may be modified from time to time by the Company, including but not
limited to the right to continue health and dental coverage on a self-pay basis
under COBRA, and to continue any other benefits as provided for in the
applicable benefit plan or pursuant to applicable law, and to exercise any stock
options as provided in the applicable company stock option plan and grant
agreements; (c) to receive the final one-quarter installment of the bonus
awarded in 2003 and payable in January 2006; and (d) Xxxxx will continue in the
future to provide Wiskind with any and all indemnification rights granted by its
corporate governance documents including but not limited to Article VI of its
Amended and Restated Code of Regulations and pursuant to the existing
Indemnification Agreement between Wiskind and the Company; no other rights or
benefits have accrued or are payable,
9. In further consideration of the payments made hereunder, to the extent
the law permits
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as of this date, Wiskind agrees and covenants not to commence, pursue or join in
other actions against the Released Party(ies), whether past or present, based
upon any act or event that occurred between Wiskind and the Released Party(ies)
up until and including the date of this Agreement. In no event will Wiskind seek
relief or share in any remedy in legal or agency proceedings involving matters
covered by this Agreement, except for the monetary consideration previously
discussed.
10. In consideration for this Agreement, Wiskind agrees to the following
restrictive covenants:
(a) Commencing on the Effective Date and continuing for a
period of two (2) years thereafter, Wiskind (a) shall
not, on his own behalf or with others, directly or
indirectly, as a shareholder, partner, director,
officer, employee, agent or otherwise, manage, operate,
control, own, provide services to, participate in,
consult with or be connected in any manner with any
corporation, partnership, proprietorship or other
business entity that engages in any business activity in
which Xxxxx or any affiliated entity is now engaged or
conducts business, operations, sales, has employees and
engages independent sales representatives, which
primarily included the geographic areas of North,
Central and South America for sales and distribution of
products by but not limited to Xxxxx Industries, Inc.,
Xxxxx Tire Supply Distribution, Inc., Xxxxx Tire Supply
division, Buckhorn Inc. and its affiliated companies,
Allibert-Buckhorn Equipement SAS and Allibert Equipement
SAS and their affiliated companies, and Patch Rubber
Company.
(b) (b) Wiskind hereby further agrees and covenants that
during the aforementioned two (2) year period, he shall
not, directly or indirectly, on his own behalf or with
others (i) induce or attempt to induce any employee of
Company to leave the employ of Company, or in any way
interfere with the relationship between Company and any
employee, (ii) hire any such employee of Company, or
(iii) induce or attempt to induce any referral
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source, customer, or other business relation of Company
or related entity not to do business with Company, or to
cease doing business with Company, or in any way
interfere with the relationship between any such
referral source, customer, or business relation and
Company
11. In consideration for this Agreement, Wiskind shall be restricted from
disseminating or using the Company's trade secrets and confidential information.
Wiskind acknowledges that as an employee of the Company and in his position as
an executive and Board member of Xxxxx, he has had extensive access to and has
acquired various confidential information relating to the business, including,
but not limited to, financial and business records, customer lists and records,
business plans, corporate strategies, employee information, wage information,
and related information and other confidential information (collectively, the
"Confidential Information").
12. Wiskind agrees that the Confidential Information is and will be of
special and unique value to Company. Wiskind further acknowledges and covenants
that, at all times, the Confidential Information is the sole property of the
Company and will constitute trade secrets and confidential information of
Company, and that his knowledge of the Confidential Information will enable him
to compete with Company in a manner likely to cause Company irreparable harm
upon the use or disclosure of such matters. Therefore, Wiskind hereby
irrevocably covenants that he shall not, at any time after the date of this
Agreement, use or disclose to any third party, directly or indirectly, any of
the Confidential Information, except as permitted by this Agreement.
13. In the event Wiskind breaches, or threatens or attempts to breach the
agreements set forth in Sections 10, 11, 12, and 23, he, recognizing that
immediate and irreparable injury will be suffered by Company, agrees that in
addition to any other rights and remedies Company has, the Agreement may be
enforced by an action to obtain a temporary injunction, restraining order or
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other appropriate equitable relief, which may be granted immediately and without
prior notice upon commencement of such action.
14. On or before the Effective Date of this Agreement, Wiskind represents
and warrants that he has or will return to Company any and all documents,
software and computer files and all of the materials or other things in his
possession, custody or control which were the property of Company or its
affiliates, including but not limited to, any computer equipment, credit cards,
leased automobile (unless purchased by Wiskind prior to April 20, 2005), and
cellular telephones provided to Wiskind by Company, as well as any Company
identification cards, keys, and the like, as well as all copies (in whatever
form) of all materials relating to his employment, or obtained or created during
the course of his employment with Company.
15. In the event Wiskind becomes legally compelled (by oral questions,
interrogatories, requests for information or documents, subpoena, investigative
demand or similar process) to disclose any of the Confidential Information,
Wiskind will provide the Company with prompt written notice thereof so that
Company may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that such
protective order or other remedy is not obtained, or that Company waives
compliance with the provisions of this Agreement, Wiskind covenants to furnish
only that portion of the Confidential Information which he is legally required
to disclose and will exercise his best efforts to obtain reliable assurance that
confidential treatment will be accorded the Confidential Information.
16. Wiskind warrants and represents that prior to and including the
Effective Date of this Agreement, no claim, demand, cause of action or
obligation which is the subject of this Agreement has been assigned or
transferred to any other person, or entity, and no other person or entity has or
had any interest in said claims, demands, causes for action or obligations and
that the respective parties have the sole and legal right to execute this
Agreement. Wiskind further
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acknowledges, warrants and represents that he has not been involved in any
accident or incident that could result in him filing an application or claim for
workers' compensation benefits.
17. Wiskind warrants and represents that he has neither filed nor
commenced any lawsuit or administrative proceeding against any Released Parties.
In the event that such lawsuit or administrative proceeding has been commenced,
Wiskind will immediately dismiss and withdraw each case and every claim with
prejudice, with Wiskind bearing the attorneys' fees and costs.
18. Wiskind acknowledges and agrees that this Agreement constitutes a
separate, binding and substituted contract, as opposed to a mere recital, and
that his exclusive remedy as to any claims against a Released Party shall be the
performance of this Agreement. This Agreement may be pleaded as a full and
complete defense to, and may be used as the basis for an injunction against any
action at law, proceeding in equity or any other judicial or non-judicial
proceeding that the parties may institute, prosecute, maintain or continue to
maintain or prosecute in breach hereof.
19. The Parties waive the provisions of Ohio Revised Code Section 2307.32,
and the holding of Xxxx x. Xxxxxxxxxx, and expressly warrant, represent and
agree that this Agreement is a full, final and complete Release as to any
involved tortfeasors, known or unknown, whether identified or not identified in
this Agreement.
20. The invalidity or unenforceability of any one provision, which is part
of this Agreement, will not render any other provision or part thereof invalid
or unenforceable and such other provisions or parts shall remain in full force
and effect.
21. Wiskind expressly warrants, represents and agrees that he has fully
investigated and researched the facts and issues material to this Agreement; he
has been fully informed of and understand the terms, covenants and effects of
this Agreement; he has had full and adequate
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opportunity to consult with counsel concerning the effects of this Agreement,
and has, in fact, consulted with counsel; no promises or inducements have been
offered to him except as set forth in this Agreement; this Agreement is executed
without any reliance upon any statements or representations other than those set
forth herein; he voluntarily and knowingly executes this Agreement of his own
free act and deed; and he is duly authorized and competent to execute this
Agreement.
22. The Parties agree that no court will apply a presumption that any
provisions or terms of this Agreement will be more strictly construed against
one party because of that party's role in drafting the Agreement, it being
agreed by all parties that all parties have participated in the preparation and
review of this Agreement.
23. The Parties acknowledge and agree that a material inducement for them
to enter into this Agreement is Wiskind's obligation to not discuss (whether
orally or in writing, or by use of any communications device) ("Discuss") with
any party the facts, terms, existence, the amount of this Agreement and the
facts surrounding the Litigation, except however that Wiskind may restate
without modification the Public Disclosure below. Xxxxx agrees to the terms of
this paragraph 23, and it intends to use language substantially as follows to
publicly disclose the existence of this Agreement: "Xx. Xxxxxxx was employed by
the Company as an executive officer through December 30, 2004. Effective
February 22, 2005, Xx. Xxxxxxx entered into a settlement agreement with the
Company regarding claims made by him in December 2004. The agreement requires
that he retire effective April 20, 2005 and grant the Company a two year
non-competition agreement. Under the settlement agreement, the Company is to pay
him $704,000 on April 20, 2005, and an additional $250,000 under a
non-qualified, non-funded supplemental compensation agreement whereby as of May
1, 2005, the Company will pay him $25,000 per year for ten years. In 2004, the
Company accrued the amount of $924,000 for these payments"
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(the "Public Disclosure") Xxxxx reserves the right to modify this language if
upon the advice of legal counsel Xxxxx is required to do so under the applicable
rules and regulations regarding the disclosure obligations of a public company.
In order to preserve the value of this Agreement, Wiskind agrees as
follows:
(a) The events leading to this Agreement and the facts,
terms, existence and amount of this Agreement shall not
be Discussed by Wiskind or his attorneys except as
required by legal process (including requests by federal
or state law enforcement to submit to an interview) and
then only after notice is first given by the party
seeking to make disclosure such that the other party
will have a reasonable opportunity to oppose disclosure,
except that Wiskind may restate without modification the
Public Disclosure. Wiskind and his counsel agree that
they will exercise their best efforts to cause their, in
the case of Wiskind, his family, and his attorneys,
representatives and other agents to maintain the
non-disclosure of the terms and provisions of this
Agreement. Wiskind may discuss the terms of this
Agreement with his spouse, attorney or accountant and to
applicable government taxing authorities, with their
agreement to not to discuss the matter with any party
other than Wiskind;
(b) Wiskind and his counsel agree not to discuss with any
person, including any employee or agent of Xxxxx, any
members of the press or any other media, and will not
voluntarily discuss with any members of any legislative
body, or in any non-judicial public or private forum,
any information concerning, relating to or arising out
of the Litigation which was raised or could have been
raised in the Litigation in this matter,
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except that Wiskind may restate without modification the
Public Disclosure;
(c) Wiskind represents and agrees that he has not discussed
the facts, terms, existence or amount of this Agreement
to anyone other than his attorneys, spouse or financial
advisors;
(d) Wiskind shall fully and completely cooperate with Xxxxx
and Xxxxx' counsel in connection with any legal or
administrative matter brought against Xxxxx or any
related entity.
24. This document consists of fifteen (15) pages, contains the entire
Agreement of the Parties, and shall not be amended or modified in any way except
upon written agreement by the Parties. The promises and agreements of each party
are expressly conditioned upon the execution by all parties of this Agreement.
This Agreement shall inure to the benefit of and be binding upon the Parties and
their heirs, successors and/or assigns. This Agreement may be signed in multiple
copies and once obtained, the signature shall become a part of this Agreement
and said Agreement shall be effective as of the date of execution of the
Agreement by all parties hereto.
25. Wiskind has certain individual federal rights, which must be
explicitly waived. Specifically, Wiskind is protected by the ADEA from
discrimination in employment because of his age. By executing this Agreement,
Wiskind waives these rights as to any past or current claims. Notwithstanding
anything else in this Agreement, excluded from this Agreement are ADEA age
claims that may arise after execution of this Agreement. In connection with the
waivers in of any and all claims or disputes that Wiskind has or may have on the
date hereof, Wiskind makes the following acknowledgments:
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(a) By signing this Agreement, Xx. Xxxxxxx waives all claims
against the Released Parties for discrimination based on
age, including without limitation, any claim which
arises under or by reason of a violation of the Age
Discrimination in Employment Act, as amended, 29 U.S.C.
621 et seq.
(b) In consideration of the waivers and covenants made by
Wiskind under this Agreement, Wiskind will be receiving
the Payment and other benefits in the amounts and manner
described in Paragraph 1 of this Agreement.
(c) Wiskind has consulted with an attorney prior to
executing this Agreement and Wiskind has been given a
period of at least twenty-one (21) days within which to
consider whether or not to enter into the Agreement
26. Wiskind acknowledges and agrees that he has been advised by counsel of
his choice and has had a reasonable time to review and consider this Agreement
and the release of claims contained herein, that he has been advised in writing
to consult with an attorney prior to signing this Agreement and that he is
knowingly, freely and voluntarily signing this Agreement without any coercion
from any source. Wiskind further acknowledges and agrees that he has carefully
read and considered this Agreement, that it has been explained to his
satisfaction, and that he understands he is releasing all known and unknown
claims in exchange for the consideration set forth in this Agreement.
27. This Agreement shall become effective on April 20, 2005, provided that
the Agreement is executed by Xxxxx and Xxxxxxx at least seven (7) days prior to
April 20, 2005 ("Effective Date"). Prior to April 20, 2005, Wiskind has the
right to revoke and/or cancel this Agreement by the delivery of notice in
writing of revocation and/or cancellation to Xxxxx X.
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O'Neil, General Counsel at Xxxxx Industries, Inc. In the event that Wiskind does
not revoke and/or cancel this Agreement before April 20, 2005, this Agreement
shall become effective on that date. In the event that Wiskind revokes this
Agreement, he will not be entitled to receive the benefits delineated in
paragraph 1 above, and continued employment and current compensation will not be
guaranteed.
28. This Agreement shall be governed by the laws of the State of Ohio.
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IN WITNESS WHEREOF, the Parties have executed this Confidential Settlement
Agreement and Release as of the dates written below.
XXXXXX X. XXXXXXX, jointly, severally, and
on behalf of his heirs, executors,
executrixes, administrators,
administratrixes, predecessors,
successors, subrogees, assigns and all
persons acting by, through, under or in
concert with him, or otherwise legally
entitled to recover through him.
Witness /s/ Xxxxxx X. Xxxxxxx
Date: February 22, 2005
XXXXX INDUSTRIES, INC.
/s/ Xxxxx X. X'Xxxx By: /s/ Xxxxxxx X. Xxxxx
Witness Xxxxxxx X. Xxxxx, Chairman and
Chief Executive Officer
Date: February 22, 2005
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