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XXXXXX & XXXXXXXX CORPORATION
Form 10-Q for Quarterly Period Ended March 26, 2000
Exhibit No. 10.1
AGREEMENT WITH EXECUTIVE OFFICER
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AGREEMENT
This Release and Settlement Agreement ("Agreement"), dated as of the
date hereof, is made between Xxxxxx & Xxxxxxxx Corporation (the "Employer"), a
Wisconsin corporation, with offices at 00000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, and Xxxxxx X. Xxxxxx (the "Employee").
WHEREAS, pursuant to the sale of the Company's castings operations, the
Employee will terminate his services with the Employer as of June 30, 2000 ("the
Effective Date").
WHEREAS, the Employee and Employer are parties to an Employment
Agreement, dated January 30, 1998, and a Change in Control Employment Agreement,
dated February 19, 1990;
WHEREAS, the Employee is a participant in Xxxxxx & Xxxxxxxx
Corporation's Stock Incentive Plan and the Xxxxxx & Xxxxxxxx Corporation
Economic Value Added Incentive Compensation Plan, as well as various employee
welfare benefit plans sponsored by Xxxxxx & Xxxxxxxx;
WHEREAS, as of the Effective Date, the Employee will become an officer
and participant in various benefit plans of Metal Technologies, Inc. ("MTI").
WHEREAS, the Employee and Employer desire to terminate the Employee's
rights under the benefit plans and agreements described above and agree upon the
responsibility of such payments and benefits;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Employee and Employer hereby agree as follows:
1-6 Covenants By the Parties.
1. The Employee's Employment Agreement, dated January 30, 1998,
and Change in Control Employment Agreement, dated February 19,
1990, will terminate as of the Effective Date. Except as
specifically provided elsewhere in this Agreement, no further
payments or other form of remuneration under the Employment
Agreement and Change in Control Employment Agreement are due
after the Effective Date.
2. The Employer agrees to pay the Employee a monthly salary of
$15,318.00, payable in semi-monthly installments, through
January 31, 2000. Thereafter, Employer shall pay Employee a
monthly salary of $1,000.00 through June 30, 2000.
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3. The Board of Directors and the Nominating, Compensation and
Governance Committee, by approving this Agreement, hereby
grant the Employee the right to exercise those Stock Options
that are exercisable as of the Effective Date, for the lesser
of three months or the balance of such Stock Option's term.
The Employer further agrees that the exercise date for the
8,500 unexercisable options granted August 5, 1997 and the
11,390 unexercisable options granted August 5, 1998 be
accelerated to the Effective Date and the accelerated options
will be cashed out pursuant to Section 5(k) of the Xxxxxx &
Xxxxxxxx Corporation Stock Incentive Plan. Other than as
provided above, no further payments or other form of
remuneration under the Xxxxxx Stock Incentive Plan are due
after the Effective Date.
4. By August 20, 2000 and pursuant to the terms of Xxxxxx &
Stratton's Economic Value Added Incentive Compensation Plan
("EVA Plan"), the Employee will receive the EVA bonus earned
for his employment during fiscal 2000 and the entire balance
of the Bonus Bank, less any amount required by law to be
withheld for income or employment taxes, in complete payment
of all monies earned under the EVA Plan. The Employee agrees
that the Employee's participation in the EVA Plan will
terminate as of the Effective Date and no further form of
remuneration or payments beyond the covenants or obligations
of this Termination Agreement are due employee.
5. Employee and Employer agree that as of January 31, 2000,
employee will terminate further vesting under both the Xxxxxx
& Xxxxxxxx Corporation Retirement Plan (Qualified Plan) and
the Supplemental Retirement Plan (the "Supplemental Plan").
Any accrued benefit in such plans shall be transferred to
MTI's qualified retirement plan after such plan is
established. Employee shall be entitled to the pension benefit
under MTI's retirement plan in accordance with the plan's
provisions as they relate to vested terminees. The accrued
benefit shall be calculated pursuant to the terms and
conditions in existence under the Supplemental Plan as of the
Effective Date. Other than the obligation to transfer
Employee's accrued benefit in the Qualified Plan, and to
either provide Employee with a pension benefit under the
Supplemental Plan, or transfer Employee's accrued benefit
under the Qualified and the Supplemental Plans, Employer shall
have no further liability to Employee under the Plans.
6. Employee shall have the option any time to purchase medical
coverage of any kind then available to Company employees at
such active employee group rate as shall be in force at such
time, for the period commencing on his Separation Date and
continuing until he (or she) reaches age 65 (or such later
date should Medicare or Medicaid eligibility be changed) as
though he (or she) were covered by the medical coverage
continuation
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rules of the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") for that entire period.
7. Employee and Employer agree except as provided above, or
required by law, that as of the Effective Date, Employee will
cease to be a participant in any benefit plans of Employer.
8. Competition.
As a condition to the receipt of the right to accelerate
options described in Section 3 hereof which are in excess of
the benefits, Employee agrees to abide by the terms of this
Section 8. For a period of 3 years after the Employee's
separation from service with the Employer, Employee will not,
directly or indirectly, own, manage, operate, control, be
connected with the ownership, management, operation or control
of any entity in the United States of America which competes
with the Employer, or be employed by, perform service for,
consult with or solicit business for any such entity. Employee
agrees that the restrictions set forth in this Section 6 are
fair and reasonable and are reasonably required for the
protection of the Employer. Employer's sole remedy for
Employee's breach of this Section 6 shall be to forever
withhold from Employee, and any person claiming through
Employee, any further payments described in the first clause
of the first sentence of this Section 8.
9. Non-Disclosure and Non-Solicitation.
During the term of his employment with the Company and for
three years after the termination of his employment with the
Company for any reason, Employee shall not, and Employee shall
use his best efforts (which best efforts shall include,
without limitation, notifying the Board of Directors of the
Company of any suspected breach of this Section 9.) to ensure
that any persons or entities over which Employee has control
do not, directly or indirectly, use any Company proprietary or
other confidential information for any purpose not associated
with Company activities, or disseminate or disclose any such
information to any person or entity not affiliated with the
Company. Such Company proprietary or other confidential
information includes without limitation sales methods,
prospecting methods, customer lists and customer contacts,
computer technology, programs and data, whether on-line or
off-loaded on disk format, inventions, improvements, trade
secrets, drawings, designs, cost information, prototypes, new
product plans, proposed product improvements, methods of
presentation and any other plans, programs and materials used
in managing, marketing or furthering Company business. Upon
termination of Employee's employment relationship with the
Company, Employee shall return to the Company all documents,
records, notebooks, manuals, computer disks and similar
repositories of or containing Company proprietary or other
confidential information, including all copies thereof, then
in Employee's possession or control,
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whether prepared by Employee or otherwise. Employee
shall undertake all reasonably necessary and appropriate steps
to ensure that the confidentiality of Company proprietary or
other confidential information shall be maintained.
10. Release.
The Employee, for himself, his heirs, personal
representatives and assigns does hereby remise, release and
discharge Xxxxxx & Xxxxxxxx Corporation, its subsidiaries,
affiliates, its officers, directors, employees and its agents,
attorneys, heirs, successors ("Released Parties") of and from
any and all manner of action or actions, cause or cause of
action, suits, debts, covenants, contracts, agreements,
judgments, executions, claims (including, but not limited to,
contribution), liabilities, obligations and demands whatsoever
in law or equity, whether known or unknown, anticipated or
unanticipated, matured or unmatured, liquidated or
unliquidated, fixed or contingent, which the Employee now has
or may have against the Released Parties, for or by reason of
any transaction, matter cause or thing whatsoever whether
based on tort, contract, or otherwise, expressed or implied,
or any federal, state or local law, statute, or regulation
concerning the benefit plans or agreements described above in
this Agreement; provided, however that this Agreement shall
not release the Released Parties from the covenants or
obligations set forth in this Agreement.
11. Entire Agreement.
This Agreement constitutes the entire agreement among the
parties with respect to the subject matter described herein
and there are no understandings or agreements relating to this
Agreement that are not fully expressed in this Agreement.
12. Waivers and Amendments.
This Agreement may be amended, superseded, canceled, renewed,
or modified, and the terms hereof may be waived only by a
written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part
of any party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof.
13. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and permitted
assigns and legal representatives.
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14. Counterparts.
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts
shall together constitute one and the same agreement.
15. Headings.
The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
16. Governing Law.
This Agreement and the transactions contemplated hereby shall
be construed in accordance with and governed by the internal
laws of the State of Wisconsin.
17. Reformation and Severability.
If any provision of this Agreement shall be held to be
invalid, unenforceable or illegal in any jurisdiction under
any circumstances for any reason, (i) such provision shall be
reformed to the minimum extent necessary to cause such
provision to be valid, enforceable and legal and preserve the
original intent of the parties, or (ii) if such provision
cannot be so reformed, such provision shall be severed from
this Agreement. Such holding shall not affect or impair the
validity, enforceability or legality of such provision in any
other jurisdiction or under any other circumstances. Neither
such holding nor such reformation or severance shall affect or
impair the legality, validity or enforceability of any other
provisions of this Agreement to the extent that such other
provision is not itself actually in conflict with any
applicable law.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be executed
as of the 2nd day of Feb, 2000.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Xxxx X. Xxxxxx
President and Chief Operating Officer