Exhibit 10(w)
SETTLEMENT AND RELEASE AGREEMENT
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THIS SETTLEMENT AND RELEASE AGREEMENT (this
"Agreement"), is entered into this 1st day of November 1995, by
and among MILTOPE GROUP INC., a Delaware corporation ("MGI"),
MILTOPE CORPORATION, an Alabama corporation ("Miltope"), MILTOPE
BUSINESS PRODUCTS, INC., a New York corporation ("MBP") (MGI,
Miltope and MBP shall hereinafter collectively be referred to as
the "Company"), XXXXXXXX GROUP, INC., a New York corporation
("PGI"), and XXXXXXX XXXXXXXX, an individual ("Xxxxxxxx").
W I T N E S S E T H:
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WHEREAS, PGI and Miltope have entered into that certain
Representative Agreement dated as of October 1, 1994 (the
"Representative Agreement"), pursuant to which PGI has agreed to
provide certain marketing and sales services for Miltope with
respect to certain ruggedized and militarized products and
product lines in the Territory (as such term is defined in the
Representative Agreement"); and
WHEREAS, PGI and Miltope desire to terminate the
Representative Agreement on the terms and conditions set forth
herein; and
WHEREAS, Xxxxxxxx, a former employee of Miltope and a
former director and Vice Chairman of the Board of Directors of
MGI, has, from time to time, on behalf of himself and/or PGI,
alleged certain claims against MGI, Miltope or MBP, as the case
may be, arising out of services performed by PGI or Xxxxxxxx
pursuant to the Representative Agreement, or pursuant to any
other agreement or understanding among certain or all of the
parties hereto or otherwise relating to or arising out of the
former employment of Xxxxxxxx by Miltope or with respect to any
alleged activities of Xxxxxxxx subsequent to such termination of
employment as an agent or representative of MGI, Miltope or MBP
in respect of commissions, compensation, fees or reimbursement of
expenses; and
WHEREAS, except as specifically set forth herein,
Xxxxxxxx, PGI, and the Company desire to effect the settlement of
all claims, controversies and disputes among the parties hereto,
of any nature whatsoever, upon the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the releases,
covenants and promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties to this Agreement do hereby
covenant and agree as follows:
Section 1. Settlement Payment.
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In consideration of the release of all claims of any nature
whatsoever by Xxxxxxxx and PGI against the Company as more
specifically set forth in Section 4 hereof, and the agreements of
PGI and Xxxxxxxx set forth herein, Miltope shall pay Xxxxxxxx,
individually and on behalf of PGI, an aggregate amount of One
Hundred Fifty Thousand Dollars ($150,000), payable in
installments of Ten Thousand Dollars ($10,000) per month for 15
consecutive months (the "Settlement Payment"), in full and
complete settlement of any and all claims which have been or
could have been or could be made by Xxxxxxxx, PGI, or any entity
controlled by Xxxxxxxx or PGI and their respective officers,
directors, employees, representatives and agents, against MGI,
Miltope or MBP, and their respective officers, directors,
employees, representatives and agents, with respect to any
possible claims or disputes of any nature whatsoever, including
without limitation, those arising out of or relating to the
Representative Agreement, or otherwise relating to any
predecessor agreement or any other agreement or understanding,
whether written or oral, relating to the former employment of
Xxxxxxxx by Miltope or with respect to any alleged activities by
Xxxxxxxx subsequent to such termination of employment as an agent
or representative of MGI, Miltope or MBP in respect of
commissions, compensation, fees or reimbursement of expenses, or
otherwise relating to any other dealings between Xxxxxxxx and/or
PGI and MGI, Miltope or MBP, as the case may be, from and to the
date of this Agreement. The Settlement Payment shall be paid by
check made payable to Xxxxxxxx at his office located at c/x
Xxxxxxxx Group, Inc., 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx
00000, with the first such payment of $10,000 to be paid on
November 1, 1995, or on such earlier date as shall be mutually
agreed to by the parties hereto.
Section 2. Agreement in Lieu of Other Rights.
---------------------------------
In addition to the general release of claims set forth in Section
4 hereof, PGI and Xxxxxxxx hereby agree that this Agreement and
the Settlement Payment to be received by Xxxxxxxx hereunder shall
constitute full payment for all services performed or alleged to
have been performed by PGI and/or Xxxxxxxx pursuant to the terms
of the Representative Agreement, or otherwise pursuant to any
other agreement or understanding, whether written or oral, and
are in lieu of any other rights that PGI and/or Xxxxxxxx may have
against MGI, Miltope, or MBP and their respective officers,
directors, employees, representatives and agents, for
compensation (including expense reimbursement) for services
rendered to MGI, Miltope or MBP prior to the date of this
Agreement, and PGI and/or Xxxxxxxx shall not have any other claim
against the Company, except, with respect to Xxxxxxxx, for
indemnification claims pursuant to the laws of the State of
Delaware or the Certificate of Incorporation or By-Laws of MGI
solely by reason of his being a former director of MGI and the
parties hereto acknowledge and agree that any such
indemnification claim is not intended to be released by Xxxxxxxx
pursuant to Section 4 hereof or otherwise pursuant to any other
provision of this Agreement.
Section 3. Termination of Representative Agreement.
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MGI, Miltope, PGI and Xxxxxxxx hereby agree that the
Representative Agreement shall terminate effective as of the date
hereof, and any and all duties and obligations of the parties
which currently or may in the future be owing thereunder shall be
fully and completely discharged concurrently with said
termination.
Section 4. Release by PGI and Xxxxxxxx.
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Except as otherwise specifically provided herein, from and after
the date of this Agreement, PGI and Xxxxxxxx hereby release and
forever discharge MGI, or any of its subsidiaries or affiliated
entities, including, but not limited to, Miltope and MBP and
their respective officers, directors, employees, agents,
representatives and attorneys, and their respective successors
and assigns, and each and all thereof, from any and all manner of
actions, suits, claims, damages, judgments, levies and execution,
whether known or unknown, liquidated or unliquidated, fixed or
contingent, direct or indirect, which Xxxxxxxx, his successors
and assigns, PGI or any of its respective affiliated entities,
and their respective officers, directors, employees,
representatives and agents, and their respective successors and
assigns, ever had, has or ever can, shall or may have or claim to
have against MGI, or any of its subsidiaries or affiliated
entities, including but not limited to, Miltope and MBP and their
respective officers, directors, employees, agents,
representatives and attorneys, and their respective successors
and assigns, for, upon or by reason of any matter, act or thing
occurring prior to the date of this Agreement, including without
limitation, any claims, demands, rights of actions, liabilities,
expenses or rights of indemnity arising out of or connected with
or related to the Representative Agreement or otherwise relating
to any predecessor agreement or any other agreement or
understanding, whether written or oral, with regard to the former
employment of Xxxxxxxx by Miltope or with respect to any alleged
activities by Xxxxxxxx subsequent to such termination of
employment as an agent or representative of MGI, Miltope or MBP
in respect of commissions, compensation, fees or reimbursement of
expenses, or otherwise relating to any other dealings between
Xxxxxxxx and/or PGI and MGI, Miltope or MBP, as the case may be.
Section 5. Non-Disclosure of Confidential Information.
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PGI and Xxxxxxxx recognize and agree that they have acquired
certain information which the Company has not made, does not
make, or which is not and does not otherwise become publicly
available knowledge, and which does not otherwise become known to
PGI or Xxxxxxxx independently through its or his efforts on
behalf of the Company (i) relating to the products, processes,
designs, inventions and/or business concepts heretofore
developed, acquired and/or used by the Company, and (ii) relating
to the customers and employees of the Company (all such
information shall be hereinafter referred to collectively as
"Confidential Information"). The parties hereto acknowledge that
such Confidential Information is of great value to the Company
and is the property of the Company. Accordingly, PGI and
Xxxxxxxx hereby agree, that neither PGI nor Xxxxxxxx will
directly or indirectly, after the date hereof, divulge to any
persons, firms or corporations (hereinafter referred to
collectively as "third parties") other than the Company, or use
or cause to authorize any third parties to use, any Confidential
Information, or any other information relating to the business or
interests of the Company regarded as confidential and valuable by
the Company which PGI or Xxxxxxxx knows or should know is
regarded as confidential and valuable by the Company. PGI and
Xxxxxxxx represent that each such party has returned all
documents, files, and lists of information relating to the
business and customers of the Company and any and all software,
hardware, order-books, customer lists, logs, documents and
materials, and all copies thereof, in its or his possession or
under its or his control relating to any Confidential Information
or any discoveries which are otherwise the property of the
Company.
Section 6. Confidentiality of Agreement.
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The parties hereto covenant and agree to keep the terms and
existence of this Agreement and the actual settlement among the
parties confidential, and not to disclose the terms of this
Agreement to any other person or entity other than (i) as is
jointly agreed by the parties, (ii) as is necessary to their
advisors in connection with the interpretation or enforcement of
the terms of this Agreement, or (iii) as required by applicable
law.
Section 7. No Admission.
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Nothing herein contained shall be construed as an admission by
any party of any wrongdoing or liability.
Section 8. Reliance.
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In executing this Agreement, the parties rely upon their own
judgment, belief and knowledge as to the nature, extent and
effect of the potential liability of the parties released hereby.
This Agreement is made without reliance by any party upon any
statement or agreement not stated specifically herein.
Section 9. Disparaging Comments.
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All parties to this Agreement agree to refrain from making any
disparaging comments as to any other party to this Agreement from
and after the date hereof.
Section 10. Entire Agreement; Modification.
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This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof, supersedes any prior
agreement between the parties, and may not be changed or
terminated orally. No change, termination or attempted waiver of
any of the provisions hereof shall be binding unless in writing
and signed by the party against whom the same is sought to be
enforced.
Section 11. Further Assurances.
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Each of the parties hereto agrees to execute all further
documents and instruments and to take or to cause to be taken all
reasonable actions which are necessary or appropriate to complete
the transactions contemplated by this Agreement.
Section 12. Severability.
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In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect under any law, rule or
regulation of any governmental authority having jurisdiction over
the parties hereto, such invalidity, illegality or
unenforceability shall not affect the validity and enforceability
of any of the other provisions hereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
Section 13. Authority.
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Each person who signs this Agreement expressly represents and
covenants that he has full and binding authority to enter into
this Agreement on behalf of himself or the entity for which he is
signing.
Section 14. Counterparts.
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This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
Section 15. Successors and Assigns.
----------------------
This Agreement shall be binding on, and shall inure to the
benefit of, all successors, assigns, executors, legal
representatives, and administrators of any of the parties hereto.
Section 16. Notices.
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All notices, requests, demands or other communications hereunder
shall be deemed to have been given if delivered in writing
personally or by certified mail to each party at the address set
forth below, or at such other address as each party may designate
in writing to the other parties:
If to MGI, Miltope or MBP:
Miltope Group Inc.
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxx Xxxx, XX 00000
Attention: President and
Chief Executive Officer
with a copy to:
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
If to PGI or Xxxxxxxx:
Xxxxxxxx Group, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Section 17. Governing Law.
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All questions governing the construction, validity and
interpretation of this Agreement shall be governed by the laws of
the State of New York.
Section 18. Headings.
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The headings of the paragraphs of this Agreement are for
descriptive purposes only and not to be construed to affect the
substance of the Agreement.
[The Remainder of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, intending to be legally bound
thereby, the undersigned parties have executed this Agreement as
of the date first written above.
MILTOPE GROUP INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Title:
MILTOPE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Title:
MILTOPE BUSINESS PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Title:
XXXXXXXX GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: President
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX XXXXXXXX
