Exhibit 10.4
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT (this "AGREEMENT"), dated as of October 30, 2000,
among AMERICAN BANKNOTE CORPORATION, a Delaware corporation having its principal
place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("ABN" or the
"COMPANY"), and Xxxx X. Xxxxxx, residing at 00 Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx 00000 (the "CLAIMANT").
W I T N E S S E T H
WHEREAS, pursuant to that certain Employment Agreement, dated July 24,
1990, as amended August 31, 1992 and July 12, 1996, by and between ABN and the
Claimant (collectively, the "EMPLOYMENT AGREEMENT"), the Claimant was employed
by the Company as executive vice president and chief financial officer until
June 30, 1998 and thereafter until his date of disability by American Banknote
Company ("ABNCo") as interim General Manager; and
WHEREAS, the Claimant's employment was terminated effective August 31,
1999, and pursuant to the terms of the Employment Agreement the Claimant became
a consultant to the Company for the period commencing as of September 1, 1999
and ending on February 28, 2001 (the "SEVERANCE PERIOD"); and
WHEREAS, the Company is the debtor and debtor-in-possession in the
Chapter 11 reorganization Case Xx. 00 X 00000 (PCB) (the "CHAPTER 11 CASE")
filed on December 8, 1999 under Chapter 11 of title 11 of the United States
Code, 11 U.S.C. xx.xx. 101-1330, as amended (the "BANKRUPTCY CODE"), in the
United States Bankruptcy Court for the Southern District of New York (the
"BANKRUPTCY COURT"); and
WHEREAS, in ABN's schedules, dated Xxxxxxxx 0, 0000, XXX scheduled the
following claims of the Claimant against the Company: (i) an unsecured claim in
the amount of $298,672 for earned vacation, benefits, and Challenge 2000
bonuses; (ii) an unsecured claim in the amount of $34,822 for accrued salary,
earned vacation, pension contributions, and medical and insurance benefits; and
(iii) an unsecured priority claim in the amount of $4,300 for accrued salary,
earned vacation, pension contributions, and medical and insurance benefits; and
WHEREAS, on January 24, 2000, the Claimant filed a proof of claim
against ABN in the Chapter 11 Case, asserting a claim in the estimated amount of
$629,822 (the "CLAIM"); and
WHEREAS the Claimant asserted or might have asserted his entitlement
to payment from ABN of certain amounts in connection with ABN's Challenge 2000
bonus program (the "Challenge 2000 Claims"); and
WHEREAS, in or about 1985 ABN loaned the Claimant the sum of $57,500,
which amount remains outstanding; and
WHEREAS, ABN and the Claimant wish to voluntarily settle and release
each other from any and all claims relating to the Employment Agreement and the
Claim upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and of the releases,
representations, covenants, and obligations contained herein, the parties hereto
agree as follows:
1. SETTLEMENT PAYMENTS.
(1) SEVERANCE. In full satisfaction of the Claim and any claims the
Claimant may have against ABN under the Employment Agreement, commencing upon
the consummation of ABN's Chapter 11 reorganization plan (the "CONSUMMATION
DATE"), ABN agrees to pay the Claimant the sum of $427,200 (the "Severance
Payment"), in thirty (30) equal monthly installments of approximately $14,240
each. In the event of the Claimant's death during the period between the
Consummation Date and the last scheduled Severance Payment (the "SEVERANCE
PERIOD"), ABN shall continue to make any payments owing under this Agreement to
the Claimant's estate pursuant to the terms of this Agreement. In the event that
this Agreement is terminated for Cause prior to the end of the Severance Period,
the Claimant shall not be entitled to receive any portion of the Severance
Payment that would have otherwise accrued after such termination for Cause. Any
portion of the Severance Payment accrued but not paid prior to such termination
for Cause shall be paid immediately upon such termination. For purposes of this
Agreement, there shall be "CAUSE" for termination of this Agreement in the event
that the Claimant pleads guilty to, or is convicted of, a felony or crime, which
conviction has, or is reasonably likely to have, a material adverse effect on
ABN or its business.
(2) BENEFITS. During the Severance Period, the Claimant shall
participate in all Company and/or ABNCo group insurance plans, and the Company
shall use its reasonable efforts to amend its group insurance contracts to
provide the Claimant and the Claimant's dependents with the same level of
insurance benefits provided to the Claimant and his dependents pursuant to the
Employment Agreement. Alternatively, to the extent Claimant is ineligible for
full coverage under the Company's group insurance plans, the Company shall
reimburse the Claimant for (i) the reasonable premiums of commercially available
insurance plans that will provide the Claimant and his dependents with the same
level of coverage provided to the Claimant and his dependents pursuant to the
Employment Agreement and (ii) any increased tax liability attributable to such
reimbursement, provided, however, that the reimbursement for the premiums and
tax liability set forth in clauses (i) and (ii) of this paragraph 1(b) shall not
exceed $40,000 in the aggregate. In the event that this Agreement is terminated
for Cause prior to the end of the Severance Period, the Claimant shall not be
entitled to receive any portion of the benefits hereunder that would have
accrued subsequent to such termination for Cause.
(3) SERP PAYMENTS. As of the earlier of the date upon which the
Bankruptcy Court enters an order approving this Agreement and the date the
Bankruptcy Court approves a Chapter 11 reorganization plan filed by ABN not
inconsistent with this Agreement (the Effective Date"), the Claimant shall, for
purposes of the American Banknote Corporation Supplemental Executive Retirement
Plan, as amended (the "SERP"), be deemed to have entered into "Retirement" (as
defined under the SERP). In accordance with the April 1, 1994 amendment to the
predecessor plan to the SERP (the United States Banknote Corporation
Supplemental Executive Retirement Plan, adopted April 1, 1994) and the Second
Amendment to the SERP adopted July 1, 1997, the Claimant shall commence
receiving monthly benefits upon Retirement under the SERP, such benefits to be
determined as if his age at Retirement were fifty-eight (58). Consultant and the
Company agree that Consultant shall receive his benefit under the SERP so that
only the actuarially reduced joint and survivor form of benefit is available to
the Claimant under the SERP. Notwithstanding any provision of the Agreement to
the contrary, the Company's obligation to make the payments hereunder shall
survive expiration of the Severance Period and termination of the Agreement for
any reason whatsoever, including but specifically not limited to termination for
Cause.
(4) Life Insurance. During the Severance Period, the Company shall
continue to provide life insurance to the Claimant in the amount of $1,600,000,
consisting of the current $600,000 split dollar policy with Mass Mutual
Insurance Company, Policy No. 0-000-000, owned by the Claimant. The remaining
$1,000,000 policy shall be a ten-year guaranteed renewable term life insurance
policy paid for by the Company that will be assigned to the Claimant at the
conclusion of the Severance Period. Additionally, the Company and the Claimant
agree to review as soon as practical the current $600,000 split dollar policy
and take reasonable steps to maximize the return of paid in premiums to the
Company and any potential cash surrender value due to the Claimant.
(5) Change In Control. In the event that this Agreement is terminated
in connection with a Change in Control then the entire Severance Payment hereby
evidenced shall become due within five (5) business days, payable and
collectible then or thereafter, without notice, as the Claimant may elect. For
purposes of the Agreement, a "Change in Control" shall not include any "Change
of Control" resulting from the Chapter 11 Case, and shall mean:
(1) the direct or indirect acquisition, whether by sale, merger,
consolidation, or purchase of assets or stock, by any person,
corporation, or other entity or group thereof of the beneficial
ownership (as that term is used in section 13(d)(1) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder) of shares in ABN which, when added to any
other share the beneficial ownership of which is held by the acquirer,
shall result in the acquirer's having more than 40% of the votes that
are entitled to be cast at meetings of stockholders as to matters on
which all outstanding shares are entitled to be voted as a single
class, excluding the transfer of ABN's then outstanding securities by
and between any persons who become beneficial owners of 10% or more of
the voting power of ABN's then outstanding securities pursuant to
ABN's Chapter 11 reorganization plan; PROVIDED, HOWEVER, that such
acquisition shall not constitute a Change in Control for purposes of
this Agreement if prior to such acquisition a resolution declaring
that the acquisition shall not constitute a Change in Control is
adopted by the Board with the support of a majority of the Board
members who either were members of the Board for at least two years
prior to the date of the vote on such resolution or were nominated for
election to the Board by at least two-thirds of the directors then
still in office who were members of the Board at least two years prior
to the date of the vote on such resolution; and PROVIDED FURTHER, that
neither ABN, nor any person who as of the Consummation Date was a
director or officer of ABN, nor any trustee or other fiduciary holding
securities under an employee benefit plan of ABN, nor any corporation
owned, directly or indirectly, by the shareholders of ABN in
substantially the same proportions as their ownership of shares of ABN
shall be deemed to be an "acquirer" for purposes of this Section
3(g)(i).
(2) the election during any two-year period (commencing upon the
consummation date of ABN's Chapter 11 reorganization plan) to a
majority of the seats of the Board of individuals who neither were
members of the Board at the beginning of such period nor were
nominated for election to the Board by at least two-thirds of the
directors then still in office who were members of the Board at the
beginning of such period; or
(3) shareholder approval of a plan of complete liquidation of ABN
or an agreement for the sale or disposition by ABN of all or
substantially all of ABN's assets.
2. NECESSARY APPROVALS. This Agreement shall be subject to approval by
the Bankruptcy Court of a Chapter 11 reorganization plan filed by ABN not
inconsistent with this Agreement, or an order of the Bankruptcy Court approving
this Agreement. In the event that such a plan is not approved or such an order
is not entered, this Agreement shall have no force or effect, and nothing
contained in this Agreement shall be deemed an admission or concession of, or be
in any way binding upon, any party hereto in connection with any future
litigation with respect to the Claim.
3. RELEASES AND INDEMNIFICATION.
(a) RELEASE BY THE CLAIMANT. As a material inducement for the Company
to enter into this Agreement, and subject to the occurrence of the Consummation
Date, the Claimant knowingly and voluntarily releases and forever discharges (i)
the Company, (ii) ABNCo, subject to payment of payment of all Severance Payments
required hereunder, and (iii) their affiliates and subsidiaries, together with
all of their past and present directors, managers, officers, shareholders,
employees, agents, attorneys, servants, successors, and assigns (collectively,
the "ABN RELEASEES") from any and all claims, charges, complaints, liens,
demands, causes of action, obligations, damages, and liabilities, known or
unknown, that he had, now has, or may hereafter claim to have against the ABN
Releasees by reason of any matter, cause, or thing whatsoever arising before the
time this Agreement is executed by the Claimant, whether against the ABN
Releasees in their individual or corporate capacities, and whether or not
previously asserted before any state or federal court or before any state or
federal agency or governmental entity, relating to the Claim, the Employment
Agreement, or the Challenge 2000 Claims (the "ABN Releases"). The ABN Releases
include, without limitation, any rights or claims relating in any way to the
Employment Agreement, the Claimant's employment relationship with the Company,
ABNCo, and their affiliates and subsidiaries, or the termination thereof, under
any statute, including, without limitation, the federal Age Discrimination in
Employment Act (the "ADEA"), Title VII of the Civil Rights Act, the Americans
With Disabilities Act, and the New York State and City Human Rights laws, each
as amended, or any other federal, state, or local law. Nothing herein shall
constitute a release by the Claimant of any claims, charges, complaints, liens,
demands, causes of action, obligations, damages, and liabilities arising from
this Agreement. For the purposes of the Claimant's potential claims under the
ADEA only, if any, the Claimant shall have twenty-one days to consider his
waiver of his rights under the ADEA, although he may agree to waive such ADEA
rights sooner if he chooses. Once the Claimant has agreed to his waiver of his
ADEA rights, the Claimant shall have seven additional days from the date of such
agreement to revoke his consent to the waiver of such ADEA rights. If no such
revocation occurs, the Claimant' waiver of his ADEA rights shall become
effective seven days from the date of such agreement.
The Company has advised the Claimant to consult with an attorney of
his choosing prior to the signing of this Agreement and the Claimant hereby
acknowledges that he has availed himself of this right, that he has carefully
read and fully understands all of the provisions of this Agreement, and that he
is entering into this Agreement, including the Release set forth in paragraph
3(a), knowingly, freely and voluntarily in exchange for good and valuable
consideration. The Claimant represents that, in executing this Agreement, he has
not relied and does not rely upon any representation or statement made by any
other party, other than those set forth herein, with regard to the subject
matter, basis or effect of this Agreement or otherwise
(b) INDEMNIFICATION AND REIMBURSEMENT. The Company's obligation to
defend, indemnify, reimburse, or limit the liability of the Claimant pursuant to
the Company's certificate of incorporation, by-laws, policy of providing
employee indemnification, applicable state law, or specific agreement in respect
of any claims, demands, suits, causes of action, or proceedings against the
Claimant based upon any act or omission related to the Claimant's services with,
for, or on behalf of the Company prior to the effective date of this Agreement,
shall survive only to the extent that the foregoing obligations may be satisfied
from the proceeds of the Company's directors and officers liability insurance
coverage. It is the Company's expectation that its securities law counsel will
continue to represent the Claimant in connection with any current representation
to the extent required by law.
(c) RELEASE BY THE COMPANY. As a material inducement for the Claimant
to enter into this Agreement, and subject to the occurrence of the Effective
Date, the Company knowingly and voluntarily releases and forever discharges the
Claimant, together with all of the Claimant's agents, attorneys, servants,
successors, and assigns (collectively, "CLAIMANT RELEASEES") from any and all
claims, charges, complaints, liens, demands, causes of action, obligations,
damages, and liabilities, known or unknown, that they had, now have, or may
hereafter claim to have against the Claimant Releasees by reason of any matter,
cause, or thing whatsoever arising before the time this Agreement is executed by
Company, whether against the Claimant Releasees in their individual or corporate
capacities, and whether or not previously asserted before any state or federal
court or before any state or federal agency or governmental entity relating to
the Claim, the Employment Agreement, or the Challenge 2000 Claims (the "Claimant
Release"). The Claimant Release includes, without limitation, any rights or
claims relating in any way to the Employment Agreement, the Claimant's
employment relationship with the Company, ABNCo, and their affiliates and
subsidiaries, or the termination thereof, under any statute or any federal,
state, or local law. Nothing herein shall constitute a release by the Company of
any claims, charges, complaints, liens, demands, causes of action, obligations,
damages, and liabilities arising from this Agreement.
4. REPRESENTATIONS AND ACKNOWLEDGMENTS. Each of ABN and the Claimant
represents that it is duly authorized to execute and deliver this Agreement. The
Claimant represents and acknowledges that the Agreement is not a solicitation of
acceptance or rejection of a plan of reorganization. It is expressly understood
and agreed that there have not been any promises, agreements, warranties,
representations, or inducements, whether oral or written, expressed or implied,
made by any party hereto, except to the extent expressly set forth herein.
5. AMENDMENTS; WAIVER. No alterations, modifications, supplements,
changes, amendments, waivers, or termination of this Agreement shall be valid
unless in writing and executed by the parties hereto. No waiver of any of the
provisions of this Agreement shall constitute a waiver of any other provisions.
6. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties hereto, and supersedes all prior and contemporaneous discussions,
negotiations, understandings, and agreements, whether oral or written, expressed
or implied, between and among the parties hereto regarding the subject matter of
this Agreement.
7. DISPUTE RESOLUTION. Any dispute, controversy, or claim arising
between the parties relating to this Agreement (whether such dispute arises
under any federal, state, or local statute or regulation, or at common law),
shall be resolved by final and binding arbitration before a single arbitrator.
The arbitrator shall be selected in accordance with the Employment Dispute
Resolution Rules of the American Arbitration Association in effect at the time
the dispute arises. In such arbitration proceedings, the arbitrator shall have
the discretion, to be exercised in accordance with applicable law, to allocate
among the parties the arbitrator's fees, tribunal and other administrative and
litigation costs and, to the prevailing party, attorneys' fees. The award of the
arbitrator may be confirmed before and entered as a judgment of any court having
jurisdiction of the parties.
8. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
IN WITNESS WHEREOF, ABN and the Claimant have executed this Agreement as of the
date and year set forth below.
American Banknote Corporation
By: XXXXXXX X. XXXXXXX
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Its SVP Finance
Dated: October 20, 2000
Xxxx X. Xxxxxx
By:
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Its
Dated: October 20, 2000
