1 Exhibit 10(l)
SETTLEMENT AGREEMENT AND
GENERAL AND SPECIAL RELEASE
1. PARTIES. The parties to this Settlement Agreement and General and
Special Release ("Agreement") are:
(a) Xxxx X. Xxxxxxxxx ("Xxxxxxxxx"), and
(b) XxXxxxxxx Xxxxxxx Corporation ("MDC").
2. RECITALS. This Agreement is entered into to effectuate Xxxxxxxxx'x
retirement from MDC, and the parties, through this Agreement, agree
to fully and finally settle all claims, known and unknown, that
either party may have against the other arising from Xxxxxxxxx'x
relationship with MDC and MDC's relationship with Xxxxxxxxx,
including, but not limited to, claims relating to Xxxxxxxxx'x
employment, his retirement and the terms and scope of monetary
payments made by, or required to be made by, MDC to him.
3. CONTRACTUAL TERMS. In consideration of the terms and covenants of
this Agreement, MDC agrees to permit, perform, allow or facilitate
certain acts on Xxxxxxxxx'x behalf and to pay certain monies, all as
more fully set out below:
(a) From the date of the execution of this Agreement until and
including March 31, 1996, Xxxxxxxxx will continue in full-time
employment at MDC;
(b) At the close of business on March 31, 1996, Xxxxxxxxx will
retire from MDC;
(c) Xxxxxxxxx will receive a payment under MDC's Senior
Executive Performance Sharing Plan ("PSP") of $524,100, subject to
normal taxation and withholdings, which payment shall be in complete
satisfaction of any award under PSP for the Plan Year 1995. Payment
under this paragraph shall issue in accordance with MDC's normal PSP
cycle on or about March 29, 1996;
(d) Promptly following his retirement on March 31, 1996,
Xxxxxxxxx will receive a lump-sum payment for all accrued and unused
vacation days, subject to normal taxation and withholding;
(e) The number of restricted shares of MDC stock granted under
the two Performance Accelerated Restricted Stock ("PARS") Agreements
dated February 25, 1994, shall be reduced from 7,500 under each
agreement to 5,625 shares under each agreement. Such reduced number
of shares shall vest or be forfeited in accordance with the terms of
the PARS Agreements as if Xxxxxxxxx was still employed by MDC
through the Performance Periods;
(f) The number of restricted shares of MDC stock granted under
the Performance Accelerated Restricted Stock ("PARS") Agreement
dated March 20, 1995, shall be reduced from 18,000 to 7,500
shares. Such reduced number of shares shall vest or be forfeited in
accordance with the terms of the PARS Agreement as if Xxxxxxxxx was
still employed by MDC through the Performance Periods;
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(g) Xxxxxxxxx'x number of restricted shares of MDC Stock granted
under the Performance Accelerated Restricted Stock Award Agreement
dated February 1, 1996, shall be canceled in their entirety;
(h) Subject to paragraph 3(j), the number of shares of MDC Stock
awarded to Xxxxxxxxx under the Long-Term Incentive Program ("LTIP")
on April 6, 1993, shall remain at 18,000 shares. Xxxxxxxxx'x
entitlement to receive an Earned LTIP Award with respect to said
April 6, 1993, award shall be determined in accordance with the
terms of the LTIP;
(i) Xxxxxxxxx will be awarded a Target Incentive Compensation
Award ("TICA") of $235,000 for calendar year 1996. His Performance
Adjusted TICA ("XXX") will be determined in accordance with the plan
provisions in the first quarter of 1997. He will receive one-fourth
(1/4) of said XXX on or before March 31, 1997. His annual base
salary will remain at $400,000 until his retirement on March 31,
1996;
(j) Any LTIP or PSP amounts that previously would have been
paid to Xxxxxxxxx but were deferred because they would not have been
deductible due to the compensation cap of Internal Revenue Code
Section 162(m), (the "162(m) Deferral"), together with additional
amounts otherwise payable to him under paragraph 3(h) shall continue
to be deferred (the "Total Deferral"). Subject to paragraph 5(c),
one-half (1/2) of such amounts shall vest and be paid in cash
to Xxxxxxxxx on the last business day of March, 1998, and the
balance shall vest and be paid in cash to him on the last business
day of March, 1999. The deferred amounts related to the 162(m)
Deferral will continue to earn interest at 11% until MDC pays
the 1996 LTIP award in accordance with the LTIP. Thereafter, the
Total Deferral will earn 7% interest compounded quarterly during the
deferral period; and
(k) Xxxxxxxxx shall be entitled to receive other employee
benefits in accordance with MDC's established plans, including the
Employee Retirement Income Plan of MDC - Salaried Plan, the
Supplemental Executive Retirement Income Plan, the Employee Savings
Plan of MDC - Salaried Plan and the Supplemental Executive Savings
Plan, all in accordance with the terms of such plans.
4. ADDITIONAL CONTRACTUAL TERMS & GENERAL AND SPECIAL RELEASE. In
consideration of the terms and provisions of this Agreement,
Xxxxxxxxx, on behalf of himself and his related individuals and
entities including, but not limited to, his successors, assigns,
attorneys, representatives, and any and all other related
individuals and entities, does hereby release and discharge MDC and
its respective predecessors, successors, assigns, attorneys,
affiliated components and corporations, and their officers,
directors, agents and employees from any and all claims,
liabilities, costs and expenses (including, but not limited to,
attorney's fees), damages, actions and causes of action, of whatever
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kind or nature arising out of acts or omissions occurring before the
execution of this Agreement (collectively referred to as "claims"),
including, without limitation, any statutory, civil or
administrative claim, claims based on this Agreement, claims arising
from rights under federal, state, and local laws prohibiting
discrimination on any basis (including age discrimination and
alleged violation of the Age Discrimination in Employment Act), and
common law claims of any kind, including, but not limited to,
contract, tort, and property rights claims including, but not
limited to, breach of contract, breach of the implied covenant of
good faith and fair dealing, tortious interference with contract or
current or prospective economic advantage, fraud, deceit, libel,
slander, misrepresentation, defamation, infliction of emotional
distress, and any other common law claim of any kind.
Notwithstanding anything herein to the contrary, the Indemnification
Agreement dated June 21, 1991, by and between MDC and Xxxxxxxxx will
survive this Agreement.
The monies and other considerations outlined in paragraphs 3(a)
through (k) herein, the sufficiencies of which are expressly
acknowledged by Xxxxxxxxx, are accepted by him in complete
satisfaction of all claims, known or unknown, disputed or otherwise.
In consideration of the terms and provisions of this Agreement, MDC,
its successors, assigns, attorneys, representatives and any and all
other related individuals and entities do hereby release and
discharge Xxxxxxxxx, and his respective predecessors, successors,
assigns and attorneys from any and all claims, including, without
limitation, any statutory, civil or administrative claim, claims
based on, or arising out of, or related to the subject matter of the
claims referred to in this Agreement, and common law claims of any
kind, claims, including, but not limited to, breach of contract,
breach of the implied covenant of good faith and fair dealing,
tortious interference with contract or current or prospective
economic advantage, fraud, deceit, libel, slander,
misrepresentation, defamation, infliction of emotional distress, and
any other common law claim of any kind.
5. CONTINUING OBLIGATIONS.
(a) Acknowledgements by Xxxxxxxxx. Xxxxxxxxx hereby
acknowledges the following:
(i) MDC is engaged in, among other things, the business of
researching, designing, developing, manufacturing, selling and
distributing on a worldwide basis fighter and military transport
aircraft, commercial aircraft, helicopters, missiles, satellite
launch vehicles, and certain related and other businesses (the
"Business").
(ii) In connection with the Business, MDC has expended a
great deal of time, money and effort to develop and maintain the
secrecy and confidentiality of substantial proprietary trade secret
information and other confidential business information which, if
misused or disclosed, could be very harmful to the Business and
could cause MDC to lose its competitive edge in the marketplace.
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(iii) Xxxxxxxxx desires to become entitled to receive the
benefits contemplated by this Agreement but which MDC would not make
available to him but for his signing and agreeing to abide by the
terms of this Section 5.
(iv) Xxxxxxxxx recognizes and acknowledges that his
position with MDC provides him with access to certain of MDC's
confidential and proprietary trade secret information and other
confidential business information.
(v) MDC compensates its employees to, among other things,
develop and preserve goodwill with its customers on MDC's behalf and
business information for MDC's ownership and use.
(vi) Xxxxxxxxx recognizes and acknowledges that MDC in all
fairness would need certain protection in order to ensure that
Xxxxxxxxx does not appropriate and misuse any confidential
information entrusted to him during the course of his employment
with MDC, or take any other action which could result in a loss of
MDC's goodwill that was generated on MDC's behalf and at its
expense, and, more generally, to prevent Xxxxxxxxx from having an
unfair competitive advantage over MDC.
(b) Confidential Information.
(i) Xxxxxxxxx agrees to keep secret and confidential, and
not to use or disclose to any third parties, any of MDC's
confidential and proprietary trade secret information or other
confidential business information concerning the Business acquired
by Xxxxxxxxx during the course of, or in connection with, his
employment with MDC. MDC considers and treats as confidential
(among other things) its engineering, design and technical data,
computer software and programs, component sourcing and supply
information, pricing policies, operational methods, strategic plans,
internal financial information, research and development plans and
activities, and business acquisition and expansion plans, and,
except as provided herein, Xxxxxxxxx agrees to treat such
information as secret and confidential so long as such information
does not become generally known to the public through no fault or
wrongful act of Xxxxxxxxx.
(ii) Xxxxxxxxx acknowledges that any and all notes,
records, sketches, computer diskettes and other documents obtained
by or provided to him, or otherwise made, produced or compiled
during the course of his employment with MDC, which contain any such
confidential MDC information, regardless of the type of medium in
which it is preserved, are the sole and exclusive property of MDC
and shall be surrendered to MDC upon his retirement.
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(c) Post-Termination Restrictions. Xxxxxxxxx agrees that, at
any time prior to the vesting or forfeiture of all restricted stock
under the PARS agreements pursuant to paragraphs 3(e) and (f) or the
vesting of deferred compensation pursuant of paragraph 3(j),
Xxxxxxxxx shall forfeit all rights (1) to vesting or otherwise
receiving any restricted stock under the PARS agreements pursuant to
paragraphs 3(e) and (f) and (2) to vesting and receipt of deferred
compensation pursuant to paragraph 3(j) if he, on his own behalf or
on behalf of any other person, firm, corporation or entity in the
world:
(i) provides any services for any of MDC's significant
competitors, suppliers or customers or provides any general
business, technical or strategic consulting or planning with respect
to the Business for any such companies. Xxxxxxxxx recognizes that
such companies could benefit greatly if they were to obtain MDC's
confidential information. Xxxxxxxxx may request permission to
provide services to or consult with any company that may be included
in the category of MDC's significant competitors, suppliers or
customers. The written denial or grant of such a request by MDC's
President and CEO shall be conclusive and binding on the parties
hereto. The grant of such a request will not be unreasonably
withheld, and if the request is granted, Xxxxxxxxx will not be held
in violation of this paragraph 5(c) for providing services to or
consulting with such company in accordance with the terms of the
request;
(ii) knowingly solicits, entices, induces, hires, employs
or seeks to employ any salesperson, engineer, technician, manager or
executive-level employee of MDC, who was employed by MDC on March
31, 1996, to provide any services with respect to the Business; or
(iii) breaches or violates paragraphs 5(b), (d) or (e) or
any MDC policy regarding confidentiality.
(d) Agreement to Refrain from Using Disparaging Comments.
Xxxxxxxxx shall indefinitely refrain, in writing and orally, from
using examples or narrative which are derogatory of MDC, its present
or former management, its policies or practices, etc.
(e) Agreement re Cooperation. Xxxxxxxxx agrees to readily and
fully cooperate with MDC should it become necessary to develop
factual bases to protect or defend MDC's business interests. As
such, among other matters yet to be directed, Xxxxxxxxx will attend:
ceremonies on April 3, 1996, at which he will be presented the
Nimitz Award; a Navy panel in Pensacola, Florida, on May 10, 1996;
and the June 7-10, 1996 Gathering of Eagles. MDC shall pay for all
expenses related to Xxxxxxxxx'x cooperation hereunder, including,
but not limited to travel, lodging, and food.
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(f) Acknowledgement Regarding Restrictions. Xxxxxxxxx
recognizes and agrees that the provisions of this Section 5 are
reasonable and enforceable because, among other things, (1) he is
receiving compensation under this Agreement and (2) there are many
other areas in which, and companies for which, he could work in view
of his background, and this paragraph 5 therefore does not impose
any undue hardship on him. He further recognizes and agrees that
the provisions of this paragraph 5 are reasonable and enforceable in
view of MDC's legitimate interests in protecting its confidential
information and customer goodwill and the limitations contained
therein on the duration and geographic scope of, and activities
covered by, such provisions.
6. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and shall be binding upon the successors and assigns of the
parties hereto, and each of them. In the case of MDC, this
Agreement is intended to release and inure to the benefit of MDC's
affiliated components and corporations, their divisions and
shareholders, officers, directors, agents, representatives,
employees, and any and all other related individuals and entities,
if any, individually as well as in the capacity indicated.
7. INTEGRATION. This Agreement constitutes a single, integrated
written contract expressing the entire agreement of the parties to
this Agreement concerning its subject matters. No covenants,
agreements, or warranties of any kind, whether express or implied in
law or fact, have been made by any party to this Agreement, except
as specifically set forth in this Agreement. All prior and
contemporaneous discussions and negotiations have been and are
merged and integrated into, and are superseded by, this Agreement.
8. MODIFICATIONS. No modification, amendment or waiver of any of the
provisions contained in this Agreement, or any future
representation, promise, or condition in connection with the subject
matter of this Agreement, shall be binding upon any party hereto
unless made in writing and signed by such party or by a duly
authorized officer or agent of such party.
9. SEVERABILITY. In the event that any provision of this Agreement
should be held to be void, voidable, unlawful or for any reason
unenforceable, the remaining portions of this Agreement shall remain
in full force and effect.
10. NON-ASSIGNMENT OF CLAIMS. Xxxxxxxxx and MDC each represent and
warrant that he and it has not assigned or transferred any portion
of the claims released herein to any other individual, firm,
corporation, or other entity, and that no other individual, firm,
corporation or other entity has any lien, claim or interest in any
of such claims, including but not limited to, any claim or interest
arising out of, related to or connected with the matters referenced
herein. Xxxxxxxxx and MDC each covenant and agree not to bring,
induce, or assist, in any claim, action or proceeding of any kind or
nature against the other party, directly or indirectly, regarding,
connected with, arising out of, or relating to in any manner the
matters released by this Agreement and to indemnify the other party
from and against all liability of any kind relating in any way to
the activities described in this paragraph.
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11. MISCELLANEOUS TERMS. Each of the parties to this Agreement further
represents, warrants, and agrees as follows:
(a) Each of the parties has had the opportunity to review this
Agreement and seek advice on the advisability of making the
settlement provided for herein and executing this Agreement,
including the opportunity to consult with the legal counsel of the
party's choice. Xxxxxxxxx acknowledges that he has been given the
opportunity to consider settling the claims referenced herein, in
accordance with the terms of this Agreement, for twenty-one (21)
days, and that he may take as much of that time as he wants to
consider the Agreement before signing it. Xxxxxxxxx also
acknowledges that he may revoke this agreement within seven (7) days
of the date he signs it, and that if he does not revoke the
Agreement within seven (7) days, the Agreement will be effective,
binding and enforceable;
(b) Each of the parties has read the Agreement carefully, knows
and understands the contents thereof, and has made such
investigation of the facts pertaining to the settlement and this
Agreement and of all matters pertaining hereto as it deems necessary
or desirable;
(c) The terms of this Agreement are contractual and result from
discussions between the parties;
(d) Each party agrees that such party will not take any action
which would interfere with the performance of this Agreement by any
of the parties hereto or which would adversely affect the status of
the rights provided for, or the claims surrendered, herein; and
(e) In entering into this Agreement and the settlement provided
for herein, the parties, and each of them, acknowledge that this
Agreement is intended to be final and binding between MDC and
Xxxxxxxxx, and is further intended to be effective as a full and
final accord and satisfaction between them. Each party relies on
the finality of this Agreement as a material factor inducing that
party's execution of this Agreement.
12. SETTLEMENT. The parties hereto acknowledge and covenant that this
Agreement represents a settlement of disputed rights and claims and
that by entering into this Agreement, no party hereto admits or
acknowledges the existence of any liability or wrongdoing, all such
liability being expressly denied. No provision of this Agreement,
or of any related document, shall be construed as an admission or
concession of liability, of any wrongdoing or of any preexisting
liability.
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13. CONFIDENTIALITY. Xxxxxxxxx and MDC agree that the existence, fact,
terms, or provisions of or information concerning this Agreement
shall remain confidential and shall not be disclosed to the mass
media or the press, or to any person, firm, corporation, or other
entity (collectively referred to as "any person") with the sole and
exclusive exceptions of: (a) as required by any governmental agency
or court, or otherwise required by law, so long as the party being
compelled to disclose provides the other party with written notice
of such requirement fifteen (15) days prior to the required
disclosure; (b) to Xxxxxxxxx'x attorney or accountant as may be
required for the rendition of professional services, so long as any
such attorney or accountant is informed of this confidentiality
agreement prior to the disclosure of information protected by it and
agrees to abide by its terms; (c) to a limited number of MDC
employees tasked with implementation of the terms of the Agreement;
(d) to a Court(s) of competent jurisdiction should either party be
required to enforce any provisions hereunder or to xxx for beach;
and (e) to Xxxxxxxxx'x prospective employers on a very limited
basis. In the unlikely event that Xxxxxxxxx is requested or
required to share the particulars of this Agreement with prospective
employers, MDC shall be notified prior to any proposed disclosure
and shall narrowly tailor and limit the scope of such
communications.
14. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have approved and executed
this Agreement on the date(s) specified below.
/s/ Xxxx X. Xxxxxxxxx
------------------------------------ March 7, 1996
Xxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------ March 7, 0000
XxXxxxxxx Xxxxxxx Corporation
By: Xxxxx X. Xxxxxxxxxxx
President & CEO
