Consulting Agreement and General Release - Alliant Techsystems Inc. and Richard Schwartz
CONSULTING AGREEMENT AND GENERAL RELEASE
This Consulting Agreement and General Release ('Agreement' or 'Consulting
Agreement'), is made by and between Richard Schwartz ('you'), a resident of the
state of Minnesota, and Alliant Techsystems Inc. ('Alliant'), a Delaware
corporation with its principal place of business in Hopkins, Minnesota. The
effective date of this Agreement is September 1, 1998. You and Alliant have
agreed that your employment has concluded as provided in this Agreement and, in
connection with such termination of employment, Alliant has agreed to provide
you with certain payments and benefits to which you would not be entitled absent
your execution of this Agreement. Further, you and Alliant desire to settle any
and all disputes related directly or indirectly to your employment by Alliant
and/or your termination from employment, in accordance with the terms and
conditions set forth in this Agreement. Finally, you and Alliant have agreed to
a consulting arrangement whereby you will assist Alliant when reasonably called
upon by Alliant's Chief Executive Officer, as described in Paragraph 5 below.
Therefore, in consideration of the mutual covenants and agreements set forth in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, you and Alliant agree as follows:
1. Termination of Employment. Effective September 1, 1998, you elected to
retire and your employment with Alliant terminated. Except as otherwise
provided in this Agreement or as set forth in the applicable employee benefit
plan document, all privileges of such employment ended as of the close of
business on that date.
2. Resignation as Officer/Director. Effective as of the close of business
September 1, 1998, you voluntarily resigned as Chief Executive Officer of
Alliant. You have also resigned as a Director and Chairman of the Board of the
Alliant Board of Directors effective January 1, 1999.
3. Payment and Benefits. (a) In connection with your retirement, Alliant
will provide you the following payments and benefits;
(i) Supplemental Employee Retirement Plan. Pursuant to the terms of
the Employment Agreement between you and Alliant dated October 27, 1994, Alliant
paid you a supplemental employee retirement plan benefit of Three Hundred
Thirteen Thousand Eight Hundred Ten dollars and forty three cents ($313,810.43
i.e. $300,000.00 plus interest at a rate of 5.65% per annum from January 9, 1998
to October 27, 1998). This amount is not considered 'Earnings' or 'Recognized
Compensation' for purposes of Alliant's qualified and non-qualified employee
(ii) MIP. You will be eligible to receive a pro rata portion (5/12)
of your Management Incentive Plan (MIP) payment for Fiscal Year 1999. Such
payment will be based on the general performance criteria already established
prior to the beginning of such Fiscal Year and corporate results as determined
by the Personnel and Compensation Committee of Alliant's Board of Directors.
Any determinations made by the Personnel and Compensation Committee regarding
achievement of performance criteria, whether by the Company as a whole or by
you, payout percentages, adjustments for extraordinary or other events or other
reasons shall in all cases be in its sole discretion, except where modified by
the Board of Directors, shall be final and binding upon you and you hereby waive
any claim or opportunity to dispute such determination. This amount will be no
less than an amount based on the overall performance of Alliant as used to
calculate the MIP Incentive Fund for other corporate participants applied to
your prorated on-plan amount, and paid in a single lump sum payment in cash at
the same time as all other MIP participants receive payment. This amount will
be considered 'Earnings' or 'Recognized Compensation' for purposes of Alliant's
qualified or non-qualified employee benefit plans. You will not be a participant
in the Alliant Management Incentive Plan for the fiscal year beginning April 1,
1999 or thereafter.
(iii) Stock Options. The Two Hundred Fifteen Thousand (215,000) stock
options exercisable as of September 1, 1998 will remain exercisable for a period
of three (3) years from your retirement date, on terms existing at time of
issue, as set forth in Paragraph 1.
(iv) Executive Life Insurance. You are the owner of a One Million
Five Hundred Thousand and No/100 dollar ($1,500,000.00) last-to-die universal
life insurance contract through the Travelers, including the cash surrender
value thereon. Alliant has reimbursed you for the premiums on such policy for
the past 4 years. Alliant will discontinue reimbursement of the premiums for the
last two years of the contract, as of your retirement date as set forth in
(v) Executive Perquisites Account and Financial Counseling. Your
participation in the Executive Perquisites Account plan terminated effective as
of the close of business on September 1, 1998. There is no remaining balance
for financial counseling services.
(vi) Accrued but Unused Vacation. You have been paid your accrued and
unused vacation balance in the amount of $73,404.47.
(vii) Employee Benefit Plans. Your rights to benefits under all other
Alliant employee benefit plans will be governed by the terms of such plans.
Medical and life insurance coverage for you and your spouse continued at active
rates through December 31, 1998. Thereafter, you were offered COBRA
continuation of these benefits on the same basis as all other terminated
participants. The current premium for employee plus one medical coverage is
$222.00 per month and for dental coverage is $51.00 per month.
You are not vested in the Alliant Techsystems Inc. Retirement Plan,
therefore any amounts you have accrued to date in these plans were forfeited as
of your retirement date as set forth in Paragraph 1. Further, because you did
not complete at least 5 full years of credited service as of your retirement
date you will not be offered retiree medical coverage for you or your family.
You were, however, automatically 100% vested in the Alliant Techsystems Inc.
401(k) Plan as of your first day of participation, therefore you have the right
to take a distribution of your account in that plan at your convenience. You
acknowledge that you have been provided Summary Plan Descriptions (SPD) for each
of these plans and have been advised of your right to a copy of each of the
underlying plan documents.
(b) Except as provided above, you acknowledge that you have received all
other compensation and benefits due and owing to you from Alliant and that you
have no further claim to any compensation or employee benefits from Alliant
4. Your Death. Alliant agrees that the compensation and benefits described in
Paragraphs 3(a)(i), (ii), (iii), (v), and (vii) above will be paid or provided
to, or exercised by, your estate in the event of your death.
5. Consulting Agreement. For a term of four (4) years beginning September 1,
1998, and ending August 31, 2002, Alliant has agreed to hire you as an
independent contractor. As an independent contractor, you will report to
Alliant's Chief Executive Officer. It is anticipated that
you will be available to Alliant approximately 50 hours per calendar quarter
through August 31, 2000, for consultation, and approximately 20 hours per
calendar quarter from September 1, 2000, through August 31, 2002. In
consideration for such consulting services and for your waiver of all
employment-related claims as set forth in Paragraph 12 below, Alliant will pay
to you Two Hundred Fifty Thousand and No/100 dollars ($250,000.00) per year. The
first year's consulting fee was paid to you in advance and in a lump sum. Future
amounts shall be payable in advance quarterly installments on the first day of
each quarter in the amount of Sixty Two Thousand Five Hundred and No/100 dollars
($62,500.00), beginning on the first Day of September 1999.
As an independent contractor you are not eligible to participate in any
Alliant employee benefit plans. No amounts received from Alliant during the term
of this Consulting Agreement shall be considered 'Earnings' or 'Recognized
Compensation' for purposes of Alliant's qualified and non-qualified employee
benefit plans. With the exception of reasonable expenses, during the term of
this Consulting Agreement you agree to waive receipt of all non-employee
Chairman of the Board and Director fees, stock awards and all other compensation
otherwise available to nonemployee directors of Alliant.
In the event of your death prior to the expiration of the term of this
Consulting Agreement, Alliant shall pay to your spouse, if she survives you, or
to your estate if your spouse does not survive you, the remaining portion of any
payments due under this Agreement.
6. Attorneys' Fees and Expenses. You agree that you are responsible for
payment of all of your own attorneys' fees and expenses incurred in conjunction
with the review of this Agreement and resolution of any and all purported claims
7. Non-Solicitation. In consideration for the payment you will receive under
this Agreement, you agree that you will not, for a period of four (4) years,
from September 1, 1998 induce or attempt to induce any employee of Alliant to
leave his or her employment with Alliant or to become employed by any business
enterprises with which you may then be employed, associated or connected.
8. Confidential Information. You acknowledge that in the course of your
employment with Alliant or any of its predecessor companies, you have had access
to confidential information and trade secrets relating to business affairs of
Alliant and/or its predecessor or related companies and entities. You agree
that you are obligated to not, at any time, disclose or otherwise make available
to any person, company or other party confidential information or trade secrets.
This Agreement shall not limit any obligations you have under any employee
confidentiality agreement or applicable federal or state law.
9. Restrictions Against Competition - Without prior written consent of the
Board of Directors of Alliant and in consideration for the amounts paid to you
during the term of this Consulting Agreement, you agree that you will not,
directly or indirectly, own, manage, operate, control, be employed by,
participate in or be connected in any manner with the ownership, management,
operation or control of any business similar to the type of business being
conducted by Alliant during the term of this Consulting Agreement and/or which
may be in competition with Alliant during the term of this Consulting Agreement.
This Paragraph 9 does not apply to immaterial ownership interests such as
ownership in a mutual fund that has within its portfolio stock of a competitor
10. Non-disparagement. You agree not to make any disparaging or negative
statements about Alliant, its products or services or its current or former
directors, officers, managers, or employees. Alliant's directors and
officers will not make any disparaging
or negative statements about you. This Paragraph 10 does not apply to any
statements you make against current or former directors, officers,
managers, or employees that are made in conjunction with or directly
related to the litigation referenced in the last paragraph of Paragraph 11
of this Agreement. Further this Paragraph 10 does not preclude and current
or former directors, officers, managers, or employees from making
statements against you that are in conjunction with or directly related to
the above referenced litigation.
Statements made in the course of any litigation or legal proceeding,
whether disparaging or negative, are excluded from coverage of this Paragraph
11. Release. As an inducement to Alliant to enter into this Agreement, you
fully release and discharge Alliant, its directors, officers, managers,
employees, agents, insurers, representatives, counsel, shareholders,
predecessors, successors, and other affiliates from all liability for damages or
claims of any kind arising out of any action, inaction, decision, or event
occurring through the date of your execution of this Agreement. You understand
that you are giving up any and all manner of actions or causes of actions,
suits, debts, claims, complaints, or demands of any kind whatsoever, whether
direct or indirect, fixed or contingent, known or unknown, in law or in equity,
that you have or may have for claims arising under or based on the Minnesota
Human Rights Act, Minn. Stat. section 363.01, et. seq.; Title VII of the Civil
Rights Act, 42 U.S.C. section 2000e et seq.; the Age Discrimination in
Employment Act, 29 U.S.C. section 621 et seq.; the Americans with Disabilities
Act, 42 U.S.C. section 12101, et seq.; the Older Worker's Benefit Protection
Act, 1990 Amendment to the Age Discrimination in Employment Act; the Fair Labor
Standards Act, 29 U.S.C. section 201 et seq.; or any other federal, state or
local law, including any attorneys' fees that could be awarded in connection
with these or any other claims. You further understand that this release
extends to, but is not limited to, all claims that you have or may have in
contract or tort theories, for wrongful discharge, wrongful discharge in
violation of public policy, breach of contract, interference with contractual
relations, promissory estoppel, breach of an express or implied promise, breach
of the implied covenant of good faith and fair dealing, breach of employee
handbooks, manuals or other policies, assault, battery, intentional or negligent
misrepresentation, fraud, retaliation, intentional or negligent infliction of
emotional distress, defamation, breach of fiduciary duty, negligent hiring,
retention or supervision and/or any other claim otherwise based on any theory,
whether developed or undeveloped, arising from or related to your employment or
the termination of your employment with Alliant, or any other fact or matter
occurring prior to your execution of this Agreement.
You further agree that you will not institute any claim for damages, by
charge or otherwise, nor otherwise authorize any other party, governmental or
otherwise, to institute any claim for damages via administrative or legal
proceeding against Alliant, its officers, executives, agents, assigns, insurers,
representatives, counsel, administrators, successors, predecessors,
shareholders, employees and /or directors. You also waive the right to money
damages or other legal or equitable relief awarded by any governmental agency
related to any such claim.
You further agree that you (or anyone on your behalf) will not file a
charge with the Equal Employment Opportunity Commission or similar state agency,
and that you waive your right to file a court action or to seek individual
remedies or damages in any Equal Employment Opportunity Commission or similar
state agency-filed court action, and your release of these rights shall apply
with full force and effect to any proceedings arising from or relating to such a
Excluded from this Paragraph 11 is any action(s), claim(s), cross-claim(s),
complaint(s) or subsequent litigation(s) or any involvement related, in any way,
to the case of Amtower et.
al. versus Hercules Incorporated C.A. No. 97C-09-018 (WTQ) presently filed in
the Superior Court of the State of Delaware.
Excluded from this Paragraph 11 are any rights you have under the Employee
Retirement Income Security Act, 29 U.S.C. 1001 et. seq., and any rights you have
under any applicable Workers Compensation Law.
12. Consideration Period. You have been informed that the terms of this
Agreement shall be open for consideration by you for a period of at least forty-
five (45) calendar days after the date you receive this Consulting Agreement and
General Release, during which time you may consider whether or not to accept
this Agreement and seek counsel to advise you regarding the same. You agree
that changes to this Agreement, whether material or immaterial, will not restart
this acceptance period. You further understand that you are not required to take
the entire forty-five (45) day period to decide whether you wish to execute the
Agreement and that you may do so on an accelerated basis without prejudice to
your own or Alliant's rights under this Agreement.
13. Right to Rescind and/or Revoke. You understand that you have the right to
revoke or rescind this Agreement for any reason by informing Alliant of your
intent to revoke or rescind this Agreement within Thirty (30) calendar days
after you sign it. You understand that this Agreement will not become
enforceable unless and until you execute the Agreement and the applicable
revocation/rescission period has expired. Any such revocation or rescission
must be in writing and hand-delivered to Bob Gustafson or, if sent by mail,
postmarked within the applicable time period, sent by certified mail, return
receipt requested, and addressed as follows:
Mr. Robert E. Gustafson
Vice President, Human Resources
Alliant Techsystems Inc.
600 Second Street NE
Hopkins, MN 55343-8384
In the event that you opt to rescind or revoke the Agreement, neither you
nor Alliant will have any rights or obligations whatsoever under this Agreement.
Any rescission or revocation, however, does not affect your termination of
employment from Alliant effective as of the date set forth in Paragraph1.
14. Enforcement Date. This Agreement does not become enforceable until Thirty
One (31) calendar days after you sign it and return it to Bob Gustafson and then
only if it has not been rescinded or revoked by you under the procedures of
15. No Admission. This Agreement is not an admission by Alliant that any of
its actions or inactions is unjustified, unwarranted, discriminatory, wrongful
or in violation of any Federal, state or local law and this Agreement shall not
be interpreted as such. Alliant disclaims any liability to you or any other
person on the part of itself, its directors, its officers, its employees, its
representatives, and its agents. You agree and acknowledge that this Agreement
shall not be interpreted to render either party to be a prevailing party for any
purpose including, but not limited to, an award of attorney's fees under any
statute or otherwise.
16. (A) Effect of Breach. In the event that you breach any material provision
of this Agreement, Alliant will have no further obligations under Paragraph 5 of
this Agreement and
you agree that Alliant is entitled to repayment of all monies paid to you under
such Sections together with reasonable attorneys' fees and costs incurred to
collect the money and to seek injunctive relief.
Further, in the event that Alliant breaches any material provision of this
Agreement, you will have no further obligations under this Agreement. Alliant
agrees that if it breaches any provision of this Agreement you will be entitled
to the remainder of payments due under the Consulting Agreement (ending August
31, 2002) together with reasonable attorneys fees and costs incurred to
establish the breach and collect unpaid fees under the Consulting Agreement.
(B) Each party agrees to give the other party ten (10) days written notice
of any alleged breach in order to permit the party accused of the breach time to
correct or reverse the breach if correction or reversal is possible. The ten
(10) day period will commence on the receipt of the written notice by the
addressee. The correction or reversal must be completed within the ten (10) day
period. If correction or reversal does not occur, as set forth above, the party
asserting the breach may proceed as set forth in (A) above.
17. No Assignment. This Agreement is personal to you and may not be assigned
by you .
18. Enforceable Contract. The laws of the State of Minnesota shall govern this
Agreement. If any part of this Agreement is construed to be in violation of any
law, such part shall be modified to achieve the objective of the parties to the
fullest extent permitted and the balance of this Agreement shall remain in full
force and effect.
19. Entire Agreement. You agree that this Agreement contains the entire
agreement between you and Alliant with respect to the subject matter hereof and
there are no promises, undertakings or understandings outside of this Agreement,
except with respect to your continued requirement not to reveal confidential,
secret or top secret information, patent, trademark or similar matters and as
specifically set forth herein. This Agreement supersedes all prior or
contemporaneous discussions, negotiations and agreements, whether written or
oral. Your right to payments or employee benefits from Alliant are specified
exclusively and completely in this Agreement. Any modification or addition to
this Agreement must be in writing, signed by an officer of Alliant and you.
20. Change of Control. This Agreement shall be binding upon both parties
irrespective of a Change of Control of Alliant Techsystems Inc. as defined in
the Amended and Restated Alliant Techsystems Inc. 1990 Equity Incentive Plan.
21. Severability and Survival - All agreements and covenants herein are
severable and, if any term, phrase, agreement or covenant is held invalid by any
competent court, this Agreement shall be interpreted as if such invalid term,
phrase, agreement or covenant were not contained herein.
22. ACKNOWLEDGEMENT. You affirm that you have read this Agreement, have had
adequate time to consider the terms of the Agreement and have been advised that
you may consult with an attorney prior to signing this Agreement. The
provisions of this Agreement are understandable to you and to the extent that
you have not understood any section, paragraph, sentence, clause or term, you
have taken steps to ensure that it was explained to you. You have entered into
this Agreement freely and voluntarily.
IN WITNESS WHEREOF, the parties have executed this Agreement by their signatures
Dated: April 20, 1999 /S/ Richard Schwartz
Dated: April 26, 1999 Alliant Techsystems Inc.
By: /S/ Daryl L. Zimmer
Its: Vice President and General Counsel