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XXXXXX & XXXXXXXX CORPORATION
Form 10-Q for Quarterly Period Ended September 26, 1999
Exhibit No. 10.1
RELEASE AND SETTLEMENT AGREEMENT
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RELEASE AND SETTLEMENT AGREEMENT
This Release and Settlement Agreement ("Agreement"), dated as of the
date hereof, is made between Xxxxxx & Xxxxxxxx Corporation (the "Employer"), a
Wisconsin corporation, with offices at 00000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, and Xxxxxxx X. Xxxxx (the "Employee").
WHEREAS, pursuant to the sale of the Company's castings operations, the
Employee will terminate his services with the Employer as of August 25, 1999
("the Effective Date").
WHEREAS, the Employee and Employer are parties to an Employment
Agreement, dated January 30, 1998, which terminates December 31, 1999, and a
Change in Control Employment Agreement, dated July 1, 1993;
WHEREAS, the Executive is a participant in Xxxxxx & Xxxxxxxx
Corporation's Stock Incentive Plan and the Xxxxxx & Xxxxxxxx Corporation
Economic Value Added Incentive Compensation Plan, as well as various employee
welfare benefit plans sponsored by Xxxxxx & Xxxxxxxx;
WHEREAS, as of the Effective Date, the Employee will become an officer
and participant in various benefit plans of Metal Technologies, Inc. ("MTI").
WHEREAS, the Employee and Employer desire to terminate the Employee's
rights under the benefit plans and agreements described above and agree upon the
responsibility of such payments and benefits;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Employee and Employer hereby agree as follows:
1-5 Covenants By the Parties.
1. The Employee's Employment Agreement, dated January 30, 1998,
and Change in Control Employment Agreement, dated July 1,
1993, will terminate as of the Effective Date. Except as
specifically provided elsewhere in this Agreement, no further
payments or other form of remuneration under the Employment
Agreement and Change in Control Employment Agreement are due
after the Effective Date.
2. The Employer agrees to pay the Employee a lump sum amount by
October 31, 1999 equal to the Employee's monthly salary (times
four) less any amount required by law to be withheld for
income or employment taxes.
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3. The Board of Directors and the Nominating, Compensation and
Governance Committee, by approving this Agreement, hereby
grant the Employee the right to exercise those Stock Options
that are exercisable as of the Effective Date, for the lesser
of three months or the balance of such Stock Option's term.
The Employer further agrees that the exercise date for the
15,070 unexercisable options granted August 5, 1998 be
accelerated to the Effective Date and the accelerated options
will be cashed out pursuant to Section 5(k) of the Xxxxxx &
Xxxxxxxx Corporation Stock Incentive Plan. Other than as
provided above, no further payments or other form of
remuneration under the Xxxxxx Stock Incentive Plan are due
after the Effective Date.
4. By August 20, 2000 and pursuant to the terms of Xxxxxx &
Stratton's Economic Value Added Incentive Compensation Plan
("EVA Plan"), the Employee will receive a prorata share of the
employee's EVA bonus earned for his two months of employment
in fiscal 2000 and the entire balance of the Bonus Bank, less
any amount required by law to be withheld for income or
employment taxes, in complete payment of all monies earned
under the EVA Plan. The Employee agrees that the Employee's
participation in the EVA Plan will terminate as of the
Effective Date and no further form of remuneration or payments
beyond the covenants or obligations of this Termination
Agreement are due employee.
5. Employee and Employer agree that as of the Effective Date,
employee will terminate his employment with a Deferred Vested
Pension under the Supplemental Retirement Plan (the
"Supplemental Plan"). Any accrued benefit in the Xxxxxx &
Xxxxxxxx Corporation Retirement Plan (Qualified Plan) shall be
transferred to MTI's qualified retirement plan after such plan
is established. Employee shall be entitled to the pension
benefit under MTI's retirement plan in accordance with the
plan's provisions as they relate to vested terminees. Xxxxxx &
Xxxxxxxx shall either retain liability for Employee's pension
benefit under the Supplemental Plan, or an amount equivalent
to Employee's accrued benefit under the Supplemental Plan
shall also be transferred to the appropriate Retirement Plan
of MTI. If Xxxxxx & Xxxxxxxx retains the liability for the
Supplemental Plan, Employee shall be entitled to apply for a
pension benefit under the Supplemental Plan upon attainment of
age 55. The accrued benefit shall be calculated pursuant to
the terms and conditions in existence under the Supplemental
Plan as of the Effective Date. Other than the obligation to
transfer Employee's accrued benefit in the Qualified Plan, and
to either provide Employee with a pension benefit under the
Supplemental Plan, or transfer Employee's accrued benefit
under the Supplemental Plan, Employer shall have no further
liability to Employee under the Plans. After the transfer of
Employee's accrued benefit under the Supplemental Plan,
Employee shall sign a Supplemental Agreement
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indicating the Employee understands the same and relieves
Xxxxxx & Xxxxxxxx of further liability under the Supplemental
Plan.
6. Employee and Employer agree except as provided above, or
required by law, that as of the Effective Date, Employee will
cease to be a participant in any benefit plans of Employer.
7. Release.
The Executive, for himself, his heirs, personal
representatives and assigns does hereby remise, release and
discharge Xxxxxx and Xxxxxxxx Corporation, its subsidiaries,
affiliates, its officers, directors, employee and its agents,
attorneys, heirs, successors ("Released Parties") of and from
any and all manner of action or actions, cause or cause of
action, suits, debts, covenants, contracts, agreements,
judgments, executions, claims (including, but not limited to,
contribution), liabilities, obligations and demands whatsoever
in law or equity, whether known or unknown, anticipated or
unanticipated, matured or unmatured, liquidated or
unliquidated, fixed or contingent, which the Executive now has
or may have against the Released Parties, for or by reason of
any transaction, matter cause or thing whatsoever whether
based on tort, contract, or otherwise, expressed or implied,
or any federal, state or local law, statute, or regulation
concerning the benefit plans or agreements described above in
this Agreement; provided, however that this Agreement shall
not release the Released Parties from the covenants or
obligations set forth in this Agreement.
8. Entire Agreement.
This Agreement constitutes the entire agreement among the
parties with respect to the subject matter described herein
and there are no understandings or agreements relating to this
Agreement that are not fully expressed in this Agreement.
9. Waivers and Amendments.
This Agreement may be amended, superseded, canceled, renewed,
or modified, and the terms hereof may be waived only by a
written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part
of any party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof.
10. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and permitted
assigns and legal representatives.
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11. Counterparts.
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts
shall together constitute one and the same agreement.
12. Headings.
The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
13. Governing Law.
This Agreement and the transactions contemplated hereby shall
be construed in accordance with and governed by the internal
laws of the State of Wisconsin.
14. Reformation and Severability.
If any provision of this Agreement shall be held to be
invalid, unenforceable or illegal in any jurisdiction under
any circumstances for any reason, (i) such provision shall be
reformed to the minimum extent necessary to cause such
provision to be valid, enforceable and legal and preserve the
original intent of the parties, or (ii) if such provision
cannot be so reformed, such provision shall be severed from
this Agreement. Such holding shall not affect or impair the
validity, enforceability or legality of such provision in any
other jurisdiction or under any other circumstances. Neither
such holding nor such reformation or severance shall affect or
impair the legality, validity or enforceability of any other
provisions of this Agreement to the extent that such other
provision is not itself actually in conflict with any
applicable law.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be executed
as of the 23rd of August, 1999.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
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Xxxxxxx X. Xxxxx Xxxx X. Xxxxxx
President and Chief Operating Officer
