EX 10.3
SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS
This Settlement Agreement and General Release of Claims ("Release"),
with an effective date of October 29, 1999, is entered into by and among Xxxxx
X. Xxxxxx, an individual (the "Employee"), and Xxxxxx Lease Finance Corporation,
a corporation, and Xxxxxx Aeronautical Services, Inc., a corporation,
(collectively hereinafter "the Company") (hereinafter, the Employee and the
Company may sometimes be referred to collectively as "the Parties"), and is
based upon the following:
RECITALS
WHEREAS, Employee has been employed by the Company since 1994;
WHEREAS, Employee entered into an Employment Agreement with Xxxxxx
Aeronautical Services, Inc., effective January 1, 1997, as well as a First
Amendment to said Employment Agreement, which was entered into on July 28, 1997,
and effective January 1, 1998;
WHEREAS, Employee and the Company have concluded that it would be in
the best interests of all concerned for Employee to leave his employment with
the Company to pursue other interests;
WHEREAS, the Parties wish to permanently resolve all claims that exist
or may exist in the future arising out of Employee's relationship with the
Company, his employment with the Company, and his resignation therefrom, and the
Parties desire to formalize the terms of their agreement in this Release, which,
by its own terms, will supersede the Employment Agreement and First Amendment to
Employment Agreement referred to above;
NOW, THEREFORE, in consideration of the premises and promises contained
herein, and the payments described below, the Parties agree as follows:
AGREEMENT
1. RESIGNATION. Employee has resigned his employment with the
Company, effective September 30, 1999.
2. SEPARATION PAYMENT. The Company agrees that it when it receives the
fully executed original of this Release and the revocation period set forth in
paragraph 23 has expired, it shall provide Employee with a check in the gross
amount of One Hundred Fifty Thousand Dollars ($150,000.00) (representing ten
(10) months of separation pay commencing October 1, 1999, two months of which
have already been paid, based upon an annual salary rate of $225,000.00) made
payable to Employee, less customary employee withholdings. The Employee
acknowledges and agrees that apart from the other consideration specifically
described in this Release, Employee has received all compensation from the
Company to which he is entitled, including bonuses, sick pay or vacation pay,
incentives, salary, reimbursement for expenses, or any other form of
compensation.
3. RELOCATION REIMBURSEMENT. The Company will provide Employee with a
check in the amount of Fifty Thousand Dollars ($50,000.00) representing
reimbursement for relocation expenses. The Company will issue an IRS Form 1099
in connection with this payment.
4. STOCK VESTING. Employee agrees that his rights to continued vesting
under the Company's 1996 Stock Option/Stock Issuance Plan terminated on
September 30, 1999. Employee will be entitled to exercise options on 40,000
shares of Company stock (30,000 at an option price of $8.00 per share, and
10,000 at an option price of $14.00 per share), which options are vested, but
unexercised, and Employee must exercise these options no later than March 31,
2000 or the options terminate.
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5. COBRA BENEFITS. The Company shall reimburse Employee for the cost of
continuation of the medical and dental insurance coverage presently received by
Employee under COBRA for the period up to and including July 31, 2000. The
Company will provide Employee with a check in the gross amount of $1,933.58,
representing the cost of these COBRA payments. Employee understands that he is
responsible for transmitting the appropriate payments each month under the terms
of COBRA. In the event Employee elects to continue receiving these benefits
under COBRA after July 31, 2000, Employee understands that he will be
responsible for making these payments himself.
6. NO ADMISSION OF LIABILITY. Employee and the Company enter into this
Release for the sole purpose of avoiding the time and expense involved in
possible litigation. This Release shall in no way be construed as an admission
by the Company, or any of the Releasees (as defined in paragraph 7 below) of any
wrongful conduct with respect to employee or any other person, or that employee
has any rights whatsoever against the Company, or any of the Releasees.
7. RELEASE OF CLAIMS. As a material inducement to the Company to enter
into this Release, Employee hereby irrevocably and unconditionally releases,
acquits and forever discharges the Company, and all of its current and former
parents, subsidiaries, affiliates, divisions, successors, predecessors, related
corporate entities, assigns, owners, stockholders, partners, directors,
officers, employees, agents, representatives, attorneys and all persons acting
by, through, under or in concert with any of them (collectively "the
Releasees"), from any and all charges, complaints (including, but not limited
to, complaints arising under the Federal Age Discrimination in Employment Act of
1967, the California Labor Code, the Civil Rights Act of 1991, and Title VII of
the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1886,
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the California Fair Employment and Housing Act, the Americans with
Disabilities Act, the Xxxxx Act and the National Labor Relations Act),
claims, liabilities, obligations, promises, agreements, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs) actually incurred of any nature
whatsoever, known or unknown, suspected or unsuspected which Employee now
has, owns or holds, or claims to have, own or hold, or which Employee at any
time heretofore had, owned or held, or claimed to have had, owned or held, or
which Employee at any time hereafter may have, own or hold, or claim to have,
own or hold, against any of the Releasees relating to any event, act or
omission that has occurred as of the date of this Release.
8. COVENANT NOT TO XXX. Employee represents that he had not filed any
complaints, charges or lawsuits against any of the Releasees; that he will not
file any complaint, charge or lawsuit against any of the Releasees at any time
hereafter for any event occurring prior to the date of this Release; and that if
any agency or court assumes jurisdiction of any complaint, charge or lawsuit
against any of the Releasees, Employee will request that the matter be dismissed
with prejudice.
9. WAIVER OF CIVIL CODE SECTION 1542. Employee expressly waives and
relinquishes all rights and benefits afforded by Section 1542 of the Civil Code
of the State of California, and does so understanding and acknowledging the
significance and consequence of such specific waiver of Section 1542. Section
1542 of the Civil Code of the State of California provides as follows:
SECTION 1542. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM, MUST HAVE
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MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of the Releasees,
Employee expressly acknowledges that this Release is intended to include in its
effect, without limitation, all claims which he does not know or suspect to
exist in his favor at the time of execution hereof, and that this Release
contemplates the extinguishment of any such claim or claims.
10. NO PRIOR ASSIGNMENT. Employee represents that he has not heretofore
assigned or transferred, or purported to have assigned or transferred, to any
person or entity, any claim or any portion thereof, or any interest therein, and
agrees to indemnify, defend and hold Releasees harmless from and against any and
all claims, based on or arising out of any such assignment or transfer, or
purported assignment or transfer of any claims or any portion thereof or
interest therein.
11. CONSTRUCTION OF RELEASE. This Release is the product of
negotiations between counsel for the respective Parties. As such, the language
of all parts of this Release shall be construed as a whole, according to its
fair meaning, and not strictly for or against any of the Parties. It is agreed
that this Release shall be construed with the understanding that both Parties
were responsible for drafting it.
12. BINDING EFFECT. This Release shall be binding upon Employee and
upon his heirs, spouse, administrators, representatives, executors, successors
and assigns, and shall inure to the benefit of Releasees and each of them, and
to their heirs, administrators, representatives, executors, successors and
assigns.
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13. CALIFORNIA LAW. This Release is made and entered into in the State
of California and shall in all respects be interpreted, enforced and governed
under the laws of the State of California. Venue shall be in San Diego County.
14. CONFIDENTIALITY. Employee agrees that he will keep the terms and
substance of this Release completely confidential, including the terms and
substance of any part of the settlement discussions leading to the
preparation of this Release; provided, however, the disclosure is permitted
only to (a) Employee's accountants, tax advisors or attorneys who provide
advice to Employee and who reasonably must be informed of the terms of this
Release; (b) as may be required by law; or (c) as may be required to enforce
the terms of this Release. Employee further understands that this
confidentiality pledge is a material term of this Release, but for which the
Company would not have entered into it.
15. NONDISPARAGEMENT. The Company and Employee both agree that neither
will do or say anything to disparage the other. In addition, and subject to the
terms set forth in paragraph 16 below, the Company and Employee agree that
neither will do anything to improperly disrupt, interfere, impair or damage the
respective business of the other.
16. OBLIGATIONS CONCERNING COMPANY PROPRIETARY INFORMATION. The Company
and Employee acknowledge that nothing in this Release precludes Employee from
working in the aviation industry following his departure from the Company.
Employee agrees that he has an ongoing obligation to refrain from using or
disclosing Company trade secrets, confidential and proprietary information in
the pursuit of any future business endeavor, or at all. The Company and Employee
also acknowledge that the restrictions on the use or disclosure of Company trade
secrets, confidential and proprietary information shall not apply to any
information that the Employee can document was:
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A. Independently developed by the Employee prior to his employment
with the Company;
B. In the public domain without breach of this Release and through
no fault of the Employee; or
C. Required to be disclosed to any state, federal or industry
regulatory authority.
It shall not be a violation of this paragraph 16 if Employee gives
notice to a company or companies that are doing or have done business with
the Company indicating that Employee has left the employ of the Company and,
on their own, the company or companies initiate contact with the Employee for
the purpose of doing business with the Employee. This exception to the
restrictions described generally in paragraph 16 is expressly subject to the
provisions of paragraph 15 above.
17. ENTIRE AGREEMENT. This Release sets forth the entire agreement
between the Parties hereto and fully supersedes any and all prior agreements or
understandings between the Parties hereto pertaining to the subject matter
hereof, including, without limitation, the Employment Agreement effective
January 1, 1997, and the First Amendment to Employment Agreement, which was
effective as of January 1, 1998.
18. ATTORNEYS' FEES. The parties to this Release understand that each
party is responsible for bearing its own costs and attorneys' fees incurred in
connection with the preparation and negotiation of this Release, and all matters
or events occurring up to the date of this Release.
19. MANDATORY ARBITRATION TO RESOLVE DISPUTES. In the event of a
dispute concerning application, interpretation or enforcement of any provision
of aspect of this Release, the parties agree that any such dispute shall be
submitted to final and binding arbitration in lieu of
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proceeding before a state or federal agency or court. Such arbitration will
take place in the County of San Diego, California, and shall be conducted by
an arbitrator mutually agreed upon between the parties from a panel of 11
arbitrators from JAMS/Endispute's San Diego offices. The arbitration will be
conducted in accordance with JAMS/Endispute's rules governing commercial
arbitrations then in effect. The parties further agree that, notwithstanding
any JAMS/Endispute rule to the contrary, the arbitrator shall be vested with
discretion and authority to award the prevailing party the costs and expenses
incurred in connection with the arbitration, including reasonable attorneys'
fees.
20. SEVERABILITY. If any provision of this Release is determined to be
invalid or unenforceable, all of the other provisions shall remain valid and
enforceable notwithstanding, unless the provision found to be unenforceable is
of such material effect that the Release cannot be performed in accordance with
the intent of the Parties in the absence thereof.
21. COUNTERPARTS AND FACSIMILES. This Release may be signed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one agreement. Facsimile signatures on this Release
shall be deemed to be original signatures.
22. MODIFICATIONS IN WRITING. This Release shall not be altered,
amended or modified except in a writing signed by Employee and the President of
the Company.
23. REVOCATION RIGHT. Employee hereby acknowledges he has twenty-one
(21) days within which to review and consider this Release before signing it,
although he is not required to wait the entire twenty-one (21) days before
signing. Employee has also been advised of his right to consult with an attorney
of his choice prior to executing this Release. Employee further acknowledges
that he has seven (7) days after signing this Release within which to revoke it
should he elect to do so. Any such written revocation shall be sent to the
Director of Human
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Resources, 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, XX 00000. Employee
further understands that this Release shall become effective and enforceable
upon the expiration of the seven (7) calendar days following the date in
which Employee executes this Release.
PLEASE READ CAREFULLY. THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN
OR UNKNOWN CLAIMS.
EMPLOYEE
Dated: By
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XXXXX X. XXXXXX
XXXXXX LEASE FINANCE CORPORATION and
XXXXXX AERONAUTICAL SERVICES, INC.
Dated: By
---------------------- ----------------------------------------
XXXXXX X. XXXXXXXXX
Executive Vice-President
Xxxxxx Aeronautical Services, Inc.
and
Executive Vice-President, Chief Administrative
Officer, Xxxxxx Lease Finance Corporation
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