SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS FINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE is made as of this
29th day of June 1995, by and between Xxxx Corporation Division (Xxxx)
and Nuclear Metals, Inc. (NMI) (hereafter collectively referred to as, the
Parties).
W I T N E S S E T H
WHEREAS, disputes arose between the Parties concerning agreements
entered into between them for the purchase of depleted uranium (DU)
penetrators for use in kinetic energy (KE) cartridges purchased by the United
States Army in FY 91/91S and FY 93, and the fact that the United States Army
purchased no KE cartridges in FY 94, and with respect to the current
multi-year procurement of M829A2 KE cartridges with DU penetrators and
specifically disputes concerning Olin Purchase Orders 02708 and 44661 and a
Negotiated Agreement between the Parties of 13 November 1991, and, with
respect to certain antitrust claims made by NMI against Olin including the
requirement of a letter of credit to secure NMI's performance on the
anticipated M829A2 penetrator requirement; and,
WHEREAS, there is presently pending in the United States District Court
for the Middle District of Florida, Tampa Division, an action styled XXXX
CORPORATION/ORDNANCE DIVISION V. NUCLEAR METALS, INC., Case No.
94-1517-CIV-T-21(c) (hereinafter, the Lawsuit), in which the Parties have
filed claims and counterclaims against each other; and,
WHEREAS, some of the claims and disputes between the Parties were
asserted by the Parties against each other in the Lawsuit and certain other
claims could have been asserted therein; and,
WHEREAS, the Parties entered into a mediation on May 8 and 9, 1995 at
which the Parties settled their above-stated differences and entered into a
Mediated Settlement
Agreement attached hereto as Exhibit 1, and which is incorporated by
reference as though fully set forth herein; and,
WHEREAS, the Parties wish to resolve all disputes pending between them
concerning the purchase of DU penetrators for KE cartridges produced or to be
produced under government contracts in FY 91/91S and FY 93/94 and the current
multi-year M829A2 procurement, and any disputes related thereto and related
to or arising out of the acquisition of Aerojet Ordnance by Olin, including
all claims or disputes which were or could have been asserted in the Lawsuit.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in the Mediated Settlement Agreement and below, the sufficiency of
which is hereby mutually acknowledged by the Parties, the Parties agree as
follows:
1. The Parties do for themselves, any predecessors, successors or
affiliated companies, and the officers, directors, employees, servants,
agents, successors or assigns of those companies, jointly and severally, do
hereby and by these presents and for anyone claiming by, through or under
them, fully remise, release, acquit and forever discharge the other of and
from any and all rights, claims, demands, damages, actions, and causes of
action, of any nature whatsoever, whether arising at law or in equity, which
any or all of the Parties may have had, may now have or may hereafter have
against the other by reason of any matter concerning the purchase of DU
penetrators for KE cartridges produced or to be produced under government
contracts in FY 91/91S and FY 93/94 and the current multi-year M829A2
procurement, and any disputes related thereto and related to or arising out
of the acquisition of Aerojet Ordnance by Olin, occurring prior to and
including the date of this Agreement.
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And for the same consideration, without limiting in any way the
generality of the above and foregoing, the Parties fully acquit, release and
forever discharge each other of and from all claims, demand, damages, actions
or causes of action which the Parties may now have or may have had from the
beginning of time to the date of execution of this Agreement because or
arising out of any matter that was raised or which could have been raised in
the Lawsuit.
And, without limiting in any way the generality of the above and
foregoing release, the Parties do hereby and by these presents fully acquit,
remise, release and forever discharge the other of and from all rights,
claims, demands, damages, actions and causes of actions, whether arising at
law or in equity, which they may now have, may have had, or which might have
been made as a result of any and all goods purchased, services performed, or
property leased or conveyed, including, but not limited to any right, claim,
action, cause of action, suit, debt due, sum of money, account, reckoning,
covenant, contract, controversy, agreement, promise, representation,
restitution, damage and demand whatsoever, at law or in equity which they may
have, may have had, or may hereafter have each against the other, for any
beach of contract, or for breach of fiduciary duty, or for an accounting, or
for specific performance, or for restitution, or for rescission, or for
fraud, or for any other tort, or consequential damages, or for rights under
any state or federal statute, including statutes pertaining to Federal
Procurements (including false claims acts, QUI TAM actions, etc.) the
Securities Act or Antitrust Laws, or for any other matter, thing, or cause of
action concerning the purchase of DU penetrators for KE cartridges produced
or to be produced under government contracts in FY 91/91S and FY 93/94 and
the current multi-year M829A2
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procurement, and any disputes related thereto and related to or arising out
of the acquisition of Aerojet Ordnance by Olin.
It is intended by the Parties to this Agreement to forever remise,
acquit, waive, release and forever discharge each other of and from all
claims, demands for losses, injuries and damages, rights known or unknown,
direct or indirect, arising from the aforementioned matters and from any
other matter occurring prior to the date of this Agreement, it being
understood that all rights which the Parties or any person who claims by,
through or under them may have against the other as of the date of this
Agreement, shall be forever released, remised and acquitted and the Parties
to this Agreement and such persons shall be forever barred from bringing or
asserting the same in their own name or names, jointly with or through any
person, natural or corporate, for or upon or by reason of any act, matter,
transaction, cause or thing whatsoever from the beginning of the world to the
date of these presents.
HOWEVER, NOTHING HEREIN SHALL BE DEEMED TO RELEASE, AFFECT, MODIFY OR
OTHERWISE ALTER THE OBLIGATIONS OF THE PARTIES UNDER THAT CERTAIN MEDIATED
SETTLEMENT AGREEMENT ENTERED BETWEEN THEM ON MAY 9, 1995.
2. Within five (5) business days of execution of this Agreement, the
Parties will, by their respective counsel, execute a Stipulation and Joint
Motion for Dismissal with Prejudice of the Lawsuit and the claims and
counterclaims set forth in the Lawsuit, which Stipulation for dismissal and
Order is set forth in the form attached hereto as Exhibit 2 and is
incorporated by reference herein.
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3. The Parties agree that the form of the Letter of Credit for the
current multi-year M829A2 procurement will be substantially in the form
attached hereto as Exhibit 3.
4. This Settlement Agreement and Mutual Release and the exhibits
attached hereto and incorporated by reference herein may be executed in two
(2) or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same Agreement.
5. The mutual consideration exchanged herein and this Settlement
Agreement and Mutual Release (and its exhibits) is not to be considered an
admission of liability on the part of any settling party, individually or
collectively, but is in full settlement of disputed claims as to which
liability has been and continues to be denied. This Settlement Agreement and
Mutual Release, and its exhibits, shall not be admissible in evidence in any
proceeding, judicial or otherwise, except as between the Parties herein and
then only for the limited purpose of proving settlement of the disputed
claims, and except as may be necessary to effectuate the purposes hereof.
6. This Agreement shall be construed in accordance with Florida law.
(Excluding Florida's choice of law rules). This Agreement, and all exhibits
hereto, with the exception of the Letter, Subcontract referenced in the
Mediated Settlement Agreement, constitute the full and complete agreement of
the Parties and all prior or contemporaneous negotiations, discussions or
understandings are considered fully integrated and merged herein.
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XXXX CORPORATION NUCLEAR METALS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Its Duly Authorized Officer Its Duly Authorized Officer
ATTEST: ATTEST:
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Witness Clerk
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EXHIBIT 1
SETTLEMENT AGREEMENT
XXXX CORPORATION AND NUCLEAR METALS, INC.
Xxxx Corporation ("Olin") and Nuclear Metals, Inc. ("NMI") ("the Parties")
agree to settle all disputes between them arising out of (1) XXXX CORPORATION
VS. NUCLEAR METALS, INC., Civil Action No. 94-1517-Civ-T-21C, United States
District Court of the Middle District of Florida and (2) the current M829A2
("2") penetrator procurement as follows:
1. This settlement agreement is binding and covers material terms of the
settlement. Counsel will prepare formal settlement documents incorporating
these terms as soon as possible.
2. Olin will award NMI a subcontract for 40% of the penetrator requirement for
the A2 prime contract, if Olin signs such a contract, subject to all usual
terms and conditions and the following additional terms and conditions:
x. Xxxx will provide NMI with a letter subcontract, including schedule, as
soon as possible.
x. Xxxx will provide a formal subcontract/purchase order within 90 days of
the signing of the subcontract, which will award to NMI 40% of any
penetrator requirement against A2 quantities ordered by the government
for any procurement year under the multi-year contract, including
options.
c. Within no more than 90 days of the signing of the subcontract, NMI will
have in place and provide Olin an irrevocable **** letter of credit
from a bank with a Bankwatch "A" rating in favor of Olin to provide
security against certain specified adverse events relating to NMI's
performance under the A2 contract. The letter of credit will provide
that Olin has the right to draw on the letter of credit if any of the
conditions set forth in part "e" of this section occur.
d. NMI will not begin work under the subcontract until the letter of credit
is in place and has been provided to and approved by Olin. Olin will not
unreasonably withhold approval.
e. The specified adverse events ("triggering events") permitting Olin to
draw on the letter of credit shall be limited as follows:
**** Confidential Treatment Requested
i. If NMI, any parent, subsidiary of affiliate, files for protection
under the U.S. Bankruptcy Code, or is forced into bankruptcy by
creditors, or is adjudged a bankrupt, or makes a general assignment
for the benefit its creditors, or if a Receiver is appointed on
account of NMI's insolvency; or
ii. If NMI's production under the A2 contract is impeded or halted such
that it cannot meet any contractually specified delivery date because
of action by any governmental agency due to any environmental
enforcement action, consent decree or the like.
f. Upon the occurrence of what Xxxx xxxxx a triggering event, Olin shall
notify NMI in writing of its intent to draw upon the letter of credit. NMI
shall have five business days to attempt to correct the triggering event
or otherwise satisfy Olin that it should not draw on the letter of credit.
At the end of five business days, if not satisfied by NMI's actions, Olin
may draw upon the letter of credit by submitting to the bank a declaration
under penalty of perjury by an officer of Olin that a triggering event has
occurred.
g. Any dispute about whether a triggering event occurred shall be resolved
by arbitration after Olin has drawn on the letter of credit, as set out
below.
h. In addition to providing the letter of credit, NMI agrees to other
contractual provisions in order to provide security to Olin with regard to
NMI's performance, as follows:
i. NMI will not undertake advance work unless asked. Accelerated or
partial deliveries will not accepted, unless at Olin's request.
Accelerated deliveries are any deliveries more than 15 days prior
to the contract delivery date.
ii. NMI will limit progress xxxxxxxx to deliveries per the project
schedule and materials availability. There will be no advance
progress xxxxxxxx.
iii. NMI will not accelerate production, deliveries or xxxxxxxx without
written permission.
iv. NMI will provide bi-weekly status reports and a monthly
"line of balance" chart against schedule.
v. NMI will undertake any reasonable steps to provide Olin assurances
that work is progressing appropriately and that funding is being
provided only for completed work or for work in process according to
schedule.
3. The parties will settle all disputes relating to the lawsuit, as follows:
a. The pending lawsuit between the parties, Xxxx Corporation vs. Nuclear
Metals, Inc., Civil Action No. 94-1517-Civ-T-21C, and all claims and
counter-claims therein, will be dismissed with prejudice, each side to
bear its own costs and attorneys' fees. The parties will execute
appropriate releases relating to the subject matter of the claims and
counterclaims in suit.
x. Xxxx and NMI will undertake appropriate joint and/or parallel efforts
to sell the 900 penetrators produced by NMI during the 900 contract at
issue in the lawsuit, but not sold to the Army. All proceeds from the
sale of such penetrators shall be divided 66.7% to NMI and 33.3% to Olin,
until such time as Xxxx shall have received $951,000, after which
NMI shall retain 100% of the proceeds.
x. Xxxx will provide additional compensation to NMI under the 900 contract
at issue in the lawsuit, as follows:
i. Upon the completion of the first year of the A2 subcontract, as
provided for below, and at the end of each of the following three
years thereafter, Olin shall accrue a liability to NMI for $100,00,
such that Olin's total liability to NMI on the fourth anniversary
of the signing of the A2 contract shall be $400,000.
ii. Providing that no triggering event has taken place, as set out above,
Olin shall pay NMI the accrued $400,000 upon completion of the A2
subcontract (approximately 4 years), payable as part of the final NMI
invoice for work performed. If the A2 subcontract is completed prior
to the planned four years, Olin shall pay upon completion an amount
of the $400,000 equal to a total prorated accrual to the date of
completion, and shall pay any balance of the $400,000 upon the date
it later accrues under this agreement. For example, if the contract
is completed at the end of three and a half years, $350,000 shall be
paid upon completion and an additional $50,000 paid at the end of the
fourth year.
iii. If a triggering event has taken place, Olin will retain all of part
of the $400,000.
4. Except as specifically provided herein, disputes between the parties
relating to the A2 subcontract shall, after its signing, be resolved
according to terms set out therein. Arbitration will be used as
follows with regard to certain specified disputes:
a. In the event of a disagreement between the parties prior to the signing
of the A2 subcontract with regard to any term of this agreement, the
formal settlement documents or any term of the A2 subcontract, the formal
settlement documents or any term of the A2 subcontract, the disagreement
will be resolved through mediation by Xxxxxxxx Xxxxx or, failing
agreement, through binding arbitration by Xx. Xxxxx under procedures
that he shall determine in his sole discretion.
b. In the event of a disagreement over whether a triggering event occurred
justifying drawing the letter of credit, the matter shall be resolved
through binding arbitration by Xx. Xxxxx under procedures that he shall
determine in his sole discretion, except that the arbitration shall begin
within 5 business days after the draw down of the letter of credit and be
resolved within 10 business days.
c. Any arbitration decision under this agreement shall be enforceable in a
court of general jurisdiction.
d. If Xx. Xxxxx is not available the parties shall agree on a substitute
from a J*A*M*S/ENDISPUTE panel and, failing agreement, JAMS/ENDISPUTE
shall appoint an arbitrator.
--------------------------------- ---------------------------------
For Olin For NMI
--------------------------------- ---------------------------------
Date Date
EXHIBIT 0
XXXXXX XXXXXX XXXXXXXX XXXXX
XXXXXX XXXXXXXX XX XXXXXXX
TAMPA DIVISION
XXXX CORPORATION/ORDNANCE :
DIVISION, a Virginia Corporation, :
Plaintiff,
vs. : CASE NO. 94-1517-CIV-T-21 (c)
NUCLEAR METALS, INC., :
a Massachusetts Corporation, :
Defendant. :
____________________________________:
STIPULATION AND JOINT MOTION FOR DISMISSAL WITH PREJUDICE
Plaintiff, Xxxx Corporation/Ordnance Division, and Defendant, Nuclear
Metals, Inc., by and through their undersigned counsel, hereby stipulate to
the dismissal of the Complaint, Counterclaim and causes of action herein,
with prejudice, each party to bear its own costs and attorneys' fees, and
jointly move the Court to enter an Order in substantially the form attached
hereto as Exhibit A to that effect.
Dated this _____ day of May, 1995.
________________________________________
XXXX X. XXXXX, ESQUIRE
Florida Bar No. 329381
TRENAM, KEMKER, SCHARF, BARKIN,
FRYE, X'XXXXX & XXXXXX, P.A.
Xxxxx 0000, Xxxxxxx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxx 00000
(000) 000-0000
(000) 000-0000
-and-
0
XXXXXXXX X. XXXXXX, XXXXXXX
Xxxxxxx Bar No. 845061
Associate Counsel
XXXX CORPORATION/ORDNANCE DIVISION
00000 XXXXX XXXXXX XXXXX
Xx Xxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
(000) 000-0000
Attorneys for Plaintiff,
XXXX CORPORATION/ORDNANCE DIVISION
-and-
________________________________________
XXXXXX X. XXXXXX, ESQUIRE, K
BBO #106060
XXXXXX XXXXXXXX, ESQUIRE
BBO #662479
XXXXXXX X. XXXXXX, ESQUIRE
BBO #556766
PEABODY & XXXXXX
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attorneys for Defendant,
Nuclear Metals, Inc.
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EXHIBIT A
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
XXXX CORPORATION/ORDNANCE :
DIVISION, a Virginia Corporation,
:
Plaintiff,
:
vs. CASE NO. 94-1517-CIV-T-21 (c)
:
NUCLEAR METALS, INC.,
a Massachusetts Corporation, :
:
Defendant.
_________________________________ :
ORDER OF DISMISSAL WITH PREJUDICE
THIS CAUSE having come before the court on the parties' Stipulation and
Joint Motion for Dismissal with Prejudice and the Court having reviewed the
said Stipulation and Motion and being otherwise fully advised in the premises,
it is thereupon
ORDERED AND ADJUDGED that:
The Stipulation is approved, the Motion is granted and the Complaint,
Counterclaim and all causes of action herein shall be and hereby are dismissed,
with prejudice, each party to bear its own costs and attorneys' fees.
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DONE AND ORDERED in Xxxxxxxx at Tampa, Hillsborough County, Florida,
this ________ day of ____________, 1995.
_______________________________________
XXXXX X. XXXXXXX, XX.
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Xxxx X. Xxxxx, Esquire
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000-0000
Xxxxxx Xxxxxxxx, Esquire
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
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EXHIBIT 3
DRAFT FORM
LETTER OF CREDIT
We hereby establish in your favor for up to a maximum of **** our
irrevocable standby Letter of Credit Number ____________ (Credit) by order
and for the account of Nuclear Metals, Inc. ("NMI").
The Credit is available only against presentation of the following
documents:
1. A written statement purportedly signed under penalty of perjury by an
officer of Xxxx Corporation ("Olin"), that any one of the following
events has occurred:
a. NMI, or any parent, subsidiary or affiliate, has filed for
protection under the U.S. Bankruptcy Code; or has been forced
into bankruptcy by creditors; or has been adjudged a bankrupt; or
has made a general assignment for the benefit of its creditors; or
that a receiver has been appointed on account of NMI's insolvency;
or
b. NMI's production under the NMI/Olin Contract identified as
Subcontract No. ___, dated________ has been impeded or halted such
that it has not met a contractually specific delivery date because
of action by any governmental agency due to any environmental
enforcement action, consent decree or the like, and that NMI has
not corrected the failure and made the delivery within five (5)
business days thereof.
2. A copy of a letter purportedly signed by an officer of Xxxx Corporation
and delivered to NMI at least five days prior to any draw under this
Letter of Credit and detailing all obligations which NMI has failed to
perform under the above referenced contract.
We hereby engage with you that all drafts drawn under and in strict
compliance with the terms and conditions of these Credit shall be duly honored
by us. This original letter must accompany all drafts here under. This Credit
shall remain valid until you notify us that the above referenced contract has
been fully performed.
This irrevocable standby Letter of Credit is subject to Article 5 of the
Uniform Commercial Code, as incorporated into the laws of [state to be
specified by bank].
**** Confidential Treatment Requested
