EXHIBIT 10.52
CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE
This Confidential Settlement Agreement and Release ("Confidential
Settlement Agreement") is entered into this ____ day of August 2000 (the date on
which all parties have affixed their signatures hereto), by and between Xxxxx
North America, Inc. ("Xxxxx") and each of the following individuals: Xxxx
Xxxxxxxx, Xxxxxx X. Xxxxx, Xx., Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxx, and Xxxx X. Xxxxx (collectively, "Plaintiffs").
Reference to Xxxxx shall include its predecessors, successors, officers,
directors, subsidiaries, assigns, affiliates, agents and employees. Reference to
each and all Plaintiffs shall include the Plaintiffs' successors in interest,
representatives of estates, and agents; and
WHEREAS, Plaintiffs were employees of Xxxxx and each individually
entered into an incentive/retention agreement with Xxxxx. The
incentive/retention agreements each contained a provision for, among other
things, a type of bonus called a "pool bonus" to be paid to each Plaintiff out
of a larger "bonus pool." The amount of money to be paid into the larger "bonus
pool" was to be determined according to a calculation set forth in that
provision. The amount of the "pool bonus" paid to each Plaintiff was set as a
percentage of the "bonus pool." This percentage is named in each Plaintiff's
incentive/retention agreement. After entering into the incentive/retention
agreements, Xxxxx and Plaintiffs ("the parties") subsequently disagreed over the
interpretation of those agreements as to the basis for calculating the "pool
bonus"; and
WHEREAS, an action has been removed to United States District Court,
District of Minnesota against Xxxxx, styled as Xxxx Xxxxxxxx, et al. x. Xxxxx
North America. Inc., which has been filed as Case No. 00-1069 (ADM/AJB) (United
States District Court); and
WHEREAS, Xxxxx has denied any liability with regard to all of the claims
in the above-described action; and
CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN XXXXX NORTH AMERICA, INC., AND XXXX
XXXXXXXX, XXXXXX X. XXXXX, XX., XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX, XXXXXX
XXXXXX, XXXXXXX XXXXXX, AND XXXX X. XXXXX--1
WHEREAS, the parties to this Confidential Settlement Agreement wish to
settle, compromise, and release any and all claims that Plaintiffs have asserted
or that they could have asserted based upon the facts giving rise to the
above-described action, including but not limited to the claims alleged in the
above described action, without necessity of the continuation of a civil suit
and of the trial on the merits with all its attendant expenses.
THEREFORE, the parties to this Confidential Settlement Agreement hereby
agree as follows:
1. Settlement Amount: The parties agree that Xxxxx shall pay to
Plaintiffs collectively the sum of $800,000.00. Each Plaintiff shall be paid a
percentage of $800,000.00, and that percentage shall be the same as the
percentage of the total "bonus pool" designated in each Plaintiff's
incentive/retention agreement with Xxxxx. Each Plaintiff's percentage of the
$800,000.00 shall be referred to as each "Plaintiff's total." Accordingly, the
amounts to be paid to Plaintiffs are as set out in the confidential and
Plaintiff-specific Exhibits "A" through "G," as provided in the following table:
NAME EXHIBIT
---- -------
Xxx Xxxxxxxxx A
Xxxxxx Xxxxxx B
Xxxx Xxxxx C
Xxxxxxx Xxxxxx D
Xxxxxx Xxxxx E
Xxxxxxx Xxxxxxx F
Xxxx Xxxxxxxx G
2. Disbursement Schedule: Except as provided in Paragraph 3, below: each
Plaintiff shall be paid half (50%) of each Plaintiffs total within ten
(10) days of the date on which all parties have signed this Confidential
Settlement Agreement. The balance shall be paid
CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN XXXXX NORTH AMERICA, INC. AND XXXX
XXXXXXXX, XXXXXX X. XXXXX, XX., XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX, XXXXXX
XXXXXX, XXXXXXX XXXXXX, AND XXXX X. XXXXX-2
out to each Plaintiff in accordance with the terms provided in the
incentive/retention agreement that each Plaintiff entered into with Xxxxx, it
being agreed that for the purposes of timing of the remaining two annual
payments, the MDMS Closing Date shall be December 17, 1999.
3. Schedule of payment for Xxxx Xxxxxxxx: The Disbursement Schedule set
out in Paragraph 2, above, shall not apply to Xxxx Xxxxxxxx, who shall instead
be paid the full amount (100%) of her allotted Plaintiff's total within ten (10)
days of the date on which all parties have signed this Confidential Settlement
Agreement.
4. Confidentiality: The parties agree that the terms of this
Confidential Settlement Agreement are and will be kept confidential.
5. Release of Xxxxx by Plaintiffs: In consideration for this
Confidential Settlement Agreement, the receipt and sufficiency of which is
hereby expressly acknowledged, each Plaintiff releases and forever discharges
Xxxxx and any affiliate, successor, agent, employee, corporation, association,
partnerships, limited liability companies, none of whom admit liability, but all
expressly deny liability, for any and all claims, demands, actions, causes of
action, suits, liabilities and damages of any nature whatsoever arising out of
common law, equity, statute, or otherwise, which it has brought, or could have
brought based on facts giving rise to the above-described action, except for any
claim to payments due each Plaintiff from Xxxxx under Paragraphs 1, 2, and 3 of
this Confidential Settlement Agreement, and the incentive/retention agreement
that each Plaintiff entered into with Xxxxx as provided in Paragraph 8, below.
Each Plaintiff agrees to execute the provided Stipulation for Dismissal
with Prejudice of the pending action against Xxxxx identified above and to
provide such Stipulation for Dismissal With Prejudice to the attorneys for Xxxxx
immediately upon execution of this Settlement
CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN XXXXX NORTH AMERICA INC., AND XXXX
XXXXXXXX. XXXXXX X. XXXXX, XX., XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX, XXXXXX
XXXXXX, XXXXXXX XXXXXX, AND XXXX X. XXXXX-3
Agreement and Release. The Plaintiffs further agree to cooperate fully and to
execute any and all supplementary documents and to take any additional steps
that may be reasonably necessary to give full force and effect to the terms and
intent of this Settlement Agreement and Release.
6. Release of Xxxxx by Xxxx Xxxxxxxx: To the extent that such claims
might be additional to or other than those released above, Xxxx Xxxxxxxx, in
consideration for this Confidential Settlement Agreement, the receipt and
sufficiency of which is hereby expressly acknowledged, hereby agrees to release
and forever discharge Xxxxx and any affiliate, successor, agent, employee,
corporation, association, partnerships, limited liability companies, none of
whom admit liability, but all expressly deny liability, for any and all claims,
demands, actions, causes of action, suits, liabilities and damages of any nature
whatsoever, known or unknown, asserted or unasserted, suspected or unsuspected,
arising out of common law, equity, statute, or otherwise, which she has brought,
or could have brought based on facts arising from her employment by Xxxxx,
except for any claim to payments due her from Xxxxx under Paragraphs 1 and 3 of
this Confidential Settlement Agreement, and the incentive/retention agreement
that she entered into with Xxxxx as provided in Paragraph 8, below.
7. Release of Xxxx Xxxxxxxx by Xxxxx: Xxxxx, in consideration for this
Confidential Settlement Agreement, the receipt and sufficiency of which is
hereby expressly acknowledged, hereby agrees to release and forever discharge
Xxxx Xxxxxxxx for any and all claims, demands, actions, causes of action, suits,
liabilities and damages of any nature whatsoever, known or unknown, asserted or
unasserted, suspected or unsuspected, arising out of common law, equity,
statute, or otherwise, which Xxxxx now has against Xxxx Xxxxxxxx arising out of
any aspect of her employment by Xxxxx, except for any claim based in her
obligations
CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN XXXXX NORTH AMERICA, INC., AND XXXX
XXXXXXXX, XXXXXX X. XXXXX, XX., XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX, XXXXXX
XXXXXX, XXXXXXX XXXXXX, AND XXXX X. XXXXX-4
pursuant to the incentive/retention agreement that she entered into with Xxxxx
as provided in Paragraph 8, below.
8. Continuation in Force of Retention/Incentive Agreements: All
provisions of the Plaintiffs' incentive/retention agreements with Xxxxx shall
remain in force with respect to each Plaintiff, except that Paragraphs 1, 2, and
3 of this Confidential Settlement Agreement supercedes the incentive/retention
agreements to the extent the incentive/retention agreements conflict with
Paragraphs 1, 2, and 3.
9. No Admission of Liability: None of the provisions of this
Confidential Settlement Agreement shall be construed as an admission of
liability by any party.
10. Authority to Enter Binding Confidential Settlement Agreement: The
parties further agree that no promise, inducement or stipulation has been made
outside of this writing, and that all the terms and provisions of this
Confidential Settlement Agreement are contractual and are not merely recitals.
Each of the signatories represents that it is authorized to enter into this
Confidential Settlement Agreement on behalf of their respective parties, and
each of the parties is bound by the terms and conditions of the Confidential
Settlement Agreement.
11. Full and Complete Understanding of Confidential Settlement
Agreement: The parties represent that they have carefully read and fully
understand all provisions of this Confidential Settlement Agreement, that they
have had a full opportunity to have all the terms of this Confidential
Settlement Agreement explained to them by legal counsel, and that they enter
into the Confidential Settlement Agreement knowingly and voluntarily of his, her
or its own free will.
12. Entire Agreement: The Confidential Settlement Agreement contains the
entire understanding between the parties and supersedes, except as outlined in
Paragraph 8, above, all
CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN XXXXX NORTH AMERICA, INC., AND XXXX
XXXXXXXX, XXXXXX X. XXXXX, XX., XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX, XXXXXX
XXXXXX, XXXXXXX XXXXXX, AND XXXX X. XXXXX--5
prior agreements and understandings relating to the subject matter of the
Confidential Settlement Agreement. The Confidential Settlement Agreement shall
not be modified, amended or terminated unless such modification, amendment or
termination is executed by the parties.
13. Choice of Law/Severability of provisions: The Confidential
Settlement Agreement shall be governed by the laws of the State of Minnesota. If
any of its provisions are held to be invalid or unenforceable by a court of
competent jurisdiction, such holding shall not invalidate any of the other
provisions of the Agreement, it being intended that the provisions are
severable.
IN WITNESS WHEREOF, the parties have caused this Confidential Settlement
Agreement to be duly executed and delivered as of the latest date set forth
below.
Xxxxx North America, Inc.
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxxxx date 8/14/00
Vice President and General Counsel
CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN XXXXX NORTH AMERICA, INC., AND XXXX
XXXXXXXX, XXXXXX X. XXXXX, XX., XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX, XXXXXX
XXXXXX, XXXXXXX XXXXXX, AND XXXX X. XXXXX-6
Plaintiffs:
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Xxxxxx X. Xxxxxxxxx date
-------------------------------------------
Xxxxxx Xxxxxx date
-------------------------------------------
Xxxx X. Xxxxx date
-------------------------------------------
Xxxxxxx Xxxxxx date
-------------------------------------------
Xxxxxx X. Xxxxx date
-------------------------------------------
Xxxxxxx X. Xxxxxxx date
-------------------------------------------
Xxxx Xxxxxxxx date
CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN XXXXX NORTH AMERICA, INC., AND XXXX
XXXXXXXX, XXXXXX X XXXXX, XX., XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX, XXXXXX
XXXXXX, XXXXXXX XXXXXX, AND XXXX X. XXXXX--7
EXHIBIT "A"
(Xxx Xxxxxxxxx)
EXHIBIT "A" (Xxx Xxxxxxxxx)--1
28% of $800,000.00
=
$224,000.00
EXHIBIT "A" (Xxx Xxxxxxxxx)--2
EXHIBIT "B"
(Xxxxxx Xxxxxx)
EXHIBIT "B" (Xxxxxx Xxxxxx)--1
14% of $800,000.00
=
$112,000.00
EXHIBIT "B" (Xxxxxx Xxxxxx)--2
EXHIBIT "C"
(Xxxx Xxxxx)
EXHIBIT "C" (Xxxx Xxxxx)--1
12% of $800,000.00
=
$96,000.00
EXHIBIT "C" (Xxxx Xxxxx)--2
EXHIBIT "D"
(Xxxxxxx Xxxxxx)
EXHIBIT "D" (Xxxxxxx Xxxxxx)--1
14% of $800,000.00
=
$112,000.00
EXHIBIT "D" (Xxxxxxx Xxxxxx)--2
EXHIBIT "E"
(Xxxxxx Xxxxx)
EXHIBIT "E" (Xxxxxx Xxxxx)--1
12% of $800,000.00
=
$96,000.00
EXHIBIT "E" (Xxxxxx Xxxxx)--2
EXHIBIT "F"
(Xxxxxxx Xxxxxxx)
EXHIBIT "F" (Xxxxxxx Xxxxxxx)--1
10% of $800,000.00
=
$80,000.00
EXHIBIT "F" (Xxxxxxx Xxxxxxx)--2
EXHIBIT "G"
(Xxxx Xxxxxxxx)
EXHIBIT "G" (Xxxx Xxxxxxxx)--1
10% of $800,000.00
=
$80,000.00
EXHIBIT "G" (Xxxx Xxxxxxxx)--2
