AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (this "Agreement") is entered into as of
the date of the last signature affixed to this Agreement between Stuart M.
Bitting ("Employee") and COMPX INTERNATIONAL INC., a Delaware corporation
("CompX"), for itself and on behalf of its parent, subsidiary or other related
or affiliated entities or persons (including, without limitation, Valhi, Inc.,
Contran Corporation and the Harold C. Simmons Family Trusts) and such entities'
predecessors, successors, assigns, officers, directors, partners, agents,
employees, trustees, insurers and attorneys, past and present (hereinafter CompX
and all such entities and persons other than Employee are collectively referred
to as the "Company").
Recitals
A. Employee is an at will employee of CompX.
B. CompX has decided to terminate Employee's employment with CompX.
C. CompX has agreed to give consideration to Employee in exchange for his
execution of the general release set forth herein, among other things.
D. Such consideration is in addition to anything of value that Employee has
received or is entitled to receive as a result of his discharge.
E. Employee has been given at least 21 days to consider this Agreement and
has been advised and encouraged by receipt of this writing to consult with an
attorney prior to executing this Agreement.
F. This Agreement will not become effective or enforceable until the
expiration of seven days following its execution and during such period Employee
may revoke the Agreement if he so desires.
Agreement
NOW, THEREFORE, IT IS AGREED, in consideration of the mutual undertakings
of the parties hereto, as follows:
Section 1. Recitals. The foregoing recitals are expressly incorporated
herein and made a part hereof.
Section 2. Termination Date. Unless terminated earlier pursuant to this
Section, Employee's employment with CompX shall terminate effective July 31,
2002. Either party may terminate Employee's employment with CompX at will
effective prior to July 31, 2002 upon written notice to the other party of such
earlier termination date. In either event, the effective date of the termination
of Employee's employment with CompX shall be referred to in this Agreement as
the "Termination Date."
Section 3. Amount of Consideration. Upon satisfying the following
conditions:
(i) Employee executes this Agreement;
(ii) Employee executes the NOTICE OF RIGHTS and ACKNOWLEDGMENT OF RECEIPT
substantially in the form attached to this Agreement;
(iii) Employee executes the REAFFIRMATION OF AGREEMENT AND GENERAL RELEASE
substantially in the form attached to this Agreement (the "Reaffirmation"); and
(iv) Employee executes a written resignation letter addressed to the board
of directors of CompX stating that he resigns all director, officer and all
other elected or appointed positions of CompX and its subsidiaries effective as
of the Termination Date;
CompX shall pay Employee, on the later of the satisfaction of such conditions or
within three business days after the Termination Date, the total sum of ONE
HUNDRED TWENTY SIX THOUSAND ONE HUNDRED TEN AND 82/100THS DOLLARS ($126,110.82),
less applicable withholding taxes (the "Severance Pay"). The Severance Pay
includes any amount owed to Employee for accrued vacation time.
Section 4. COBRA Benefits. If Employee and Employee's dependents wish to
continue health benefits, Employer agrees to pay on behalf of Employee the
actual expense of Employee's and his eligible dependents' benefits under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"),
for the period from the Termination Date through January 31, 2003, or such
shorter period if Employee becomes ineligible for COBRA benefits. Employer's
payment of COBRA expenses for Employee and his eligible dependents' benefits
pursuant to this Section shall NOT extend the period that Employee and his
dependents are eligible for COBRA benefits. If Employee and his dependents are
eligible for COBRA benefits after January 31, 2003, and they wish to continue
such benefits, Employee must make the payments for such benefits beginning
February 1, 2003. Employee and his dependents will not receive any further
notice to make such payments beginning February 1, 2003.
Section 5. 2002 Bonus and Profit-Sharing; Vacation Pay. Employee will not
receive any bonuses or profit-sharing benefits for 2002 from the Company.
Section 6. General Release. Employee agrees to the following General
Release (the "General Release"):
FOR VALUE RECEIVED, the adequacy and sufficiency of which is hereby
acknowledged, Employee, on behalf of himself and his heirs, executors,
attorneys, administrators, successors and assigns (hereinafter referred to
as "Releaser") hereby fully and forever releases and discharges the Company
from any and all claims, demands, liens, agreements, contracts, covenants,
actions, suits, causes of action, obligations, controversies, debts, costs,
expenses (including but not limited to attorneys' fees and expenses),
damages, judgments, orders and liabilities of whatever kind or nature, in
law or equity, by statute or otherwise, whether now known or unknown,
vested or contingent, suspected or unsuspected, and whether or not
concealed or hidden, that have existed or may have existed, or that do
exist, including all claims arising in any manner relating to his
employment or the termination of his employment with the Company. This
General Release shall include, without in any way limiting the generality
of the foregoing language, any and all claims of employment discrimination
under the United States Constitution, the Constitution of the state of
Texas, the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, 42 U.S.C.
1981, the Americans with Disabilities Act, the Fair Labor Standards Act,
the Equal Pay Act, the Worker Adjustment and Retraining Notification Act,
the Employee Retirement Income Security Act, the Family and Medical Leave
Act, the Texas Commission on Human Rights Act, any other statutory,
regulatory and common law requirements of the state of Texas, or under any
other applicable federal, state or local laws, ordinances or legal
restrictions on the Company's rights.
Unless otherwise provided in this Agreement, payment under this
Agreement shall not alter or change the rights that the Employee has to
benefits accrued as of his termination date under the CompX Contributory
Retirement Plan, the CompX Capital Accumulation Pension Plan or the CompX
International Inc. 1997 Long-Term Incentive Plan or pursuant to any
agreement of limited liability or any indemnification available to Releaser
as a director or officer of CompX or any of its subsidiaries, whether set
forth in such applicable entity's certificate of incorporation, bylaws,
resolutions of the board of directors or otherwise. Unless otherwise
provided in this Agreement, Employee's rights under these plans shall
continue to be controlled by the respective plan documents and the
consideration paid under this Agreement shall not be included as
compensation for benefit purposes under these plans. Also, except as
otherwise provided in this Agreement, this Agreement shall not increase,
decrease or otherwise affect Releaser's right to medical coverage during
his term of employment or thereafter at Releaser's expense under COBRA.
It is the intention of Releaser in executing this General Release that
it shall be effective as a bar to each and every claim, demand and cause of
action of whatever kind or character whether or not hereinabove mentioned
or implied; and the Releaser hereby knowingly and voluntarily waives any
and all rights and benefits arising through the date of this Agreement.
Releaser expressly consents that this General Release shall be given full
force and effect according to each and all of its express terms and
provisions, including those relating to unknown and unsuspected claims,
demands, charges and causes of action (notwithstanding any state statute
that expressly limits the effectiveness of a general release of unknown,
unsuspected and unanticipated claims), if any, as well as those relating to
any other claims, demands and causes of action hereinabove mentioned or
implied. Releaser acknowledges and agrees that this waiver is an essential
and material term of this General Release and without such waiver this
Agreement would not have been entered into.
Releaser understands and agrees that this General Release is not
intended to be and shall not be deemed, construed or treated in any respect
as an admission of liability by any person or entity for any purpose.
Releaser further acknowledges that he has entered into this General
Release freely and without coercion, that he has been advised and
encouraged in writing to consult with counsel and has been offered a period
of time of at least 21 days to consider the terms of this General Release.
Releaser understands that he has seven days from the date this General
Release is executed to revoke this Agreement and until the expiration of
this seven-day period the General Release shall not be effective or
enforceable.
Section 4. Contest, Grievance, Earlier Termination and Liquidated Damages.
In the event Employee (i) contests the effectiveness of the General Release in a
proceeding before a court of law, (ii) pursues a claim or grievance arising on
or before the effectiveness of this Agreement against the Company in a
proceeding before a court of law or (iii) pursues a damage award arising against
the Company before an administrative official or agency of an applicable
governmental authority, ten days prior to instituting any such proceeding or
claim Employee shall pay CompX a lump sum as liquidated damages equal to the
Severance Pay plus lawful interest from the date Employer paid the Severance Pay
to Employee at the lesser of 10% per annum or the maximum lawful rate (the
"Liquidated Damages"). If Employee fails to comply with this Section, Employee
agrees that CompX may seek injunctive relief for the specific performance of
this Section and, in the event that specific performance is not obtained, any
damages that Employee may be entitled to as a result of such proceeding shall be
reduced by the amount of the Liquidated Damages. The General Release provided in
Section 6 shall remain effective against Employee whether or not Employee pays
the Liquidated Damages to CompX.
Section 8. Return of Company Property. On the Termination Date, Employee
agrees to return and leave in the custody of CompX all the Company's documents
and property except (i) for routine expense reports needed for income tax return
preparation, insurance policies, claim forms and the like and (ii) with respect
to CompX equipment (such as computers, cellular phones, pagers, personal digital
assistants and the like) in Employee's possession that Employee would like to
keep, Employee agrees to reimburse CompX for the agreed upon value of such
equipment within two business days after the Termination Date. If Employee fails
to pay CompX for any such equipment that he decides to keep, CompX may deduct
the fair value of such equipment from the Severance Pay.
Section 9. Cooperation in Legal Matters. Employee acknowledges that in the
course of his employment with CompX, he has gained knowledge and experience
and/or was a witness to events and circumstances that may arise in the Company's
defense or prosecution of subsequent proceedings. Employee agrees to cooperate
fully and truthfully with the Company and to appear upon the Company's
reasonable request and expense as a witness and/or consultant in defending or
prosecuting claims of all kinds, including but not limited to any litigation,
administrative actions or arbitrations.
Section 10. Attorney Fees for Successful Party. The parties agree that
should one party sue the other party for a breach of any provision of this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorney's fees and costs of court if it is successful in obtaining a final
judgment against the other party. The parties hereby agree that each party shall
have the right to sue for specific performance of this Agreement and declaratory
and injunctive relief.
Section 11. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and the heirs, executors,
administrators, successors and assigns of each of the parties, as applicable.
Section 12. Nondisclosure. Employee shall refrain from all conduct, verbal
or otherwise, that would damage the Company's reputation, goodwill or standing
in the community or among its employees. Employee further agrees not to disclose
any privileged or proprietary information concerning the Company's operations,
except as may be required by governmental or judicial authorities. Under no
circumstances is Employee allowed to utilize information from Company files or
electronic equipment to disclose, or allow to be obtained or disclosed, through
the use of agents or any third party information in oral, written or
computerized data form, about such things as payroll information of any type, or
the names, addresses or telephone numbers of Company personnel, or any
non-public financial information about the Company, except as may be required by
governmental or judicial authorities. Employee further agrees not to disclose
any information relating to the terms or existence of this Agreement to any
other person or organization, including but not limited to past, present and
future employees of the Company, except as may be required by governmental or
judicial authorities. Employee's breach of this Section will be deemed a
material breach of this Agreement.
Section 13. No Other Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and the
parties acknowledge that there are no warranties, promises or representations of
any kind, express or implied, upon which the parties have relied in entering
into this Agreement. The terms and conditions of this Agreement are contractual
and not a mere recital. No part of this Agreement may be changed except in a
writing executed by both parties.
Section 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of Texas, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
state of Texas or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the state of Texas. Whenever possible,
each provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner whatsoever the
remainder of such provision or the remaining provisions.
Section 15. Notice and Tenders. Any notice, request or other communication
hereunder to a party shall be in writing and all notices and tenders shall be
delivered or sent by postage prepaid first class mail or overnight courier to
the address of the party appearing beneath such party's signature to this
Agreement or such other address as such party may notify the other party
pursuant to this Section.
Section 16. Counterparts. This Agreement may be executed in any number of
counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement and General
Release effective as of the date of the last signature affixed below.
READ CAREFULLY BEFORE SIGNING
I have read this Agreement and General Release and have had the opportunity
to consult legal counsel prior to my signing of this Agreement and General
Release. I understand that by executing this Agreement and General Release I
will relinquish any right or demand I may have against the Company.
Date: July 16, 2002
/s/ Stuart M. Bitting
---------------------------------------
Stuart M. Bitting
Address: 500 Carter Drive
Coppell, Texas 75019
Telephone No.: 972.393.8153
Social Security No.: XXX-XX-XXXX
Date: July 16, 2002 COMPX INTERNATIONAL INC.
/s/ Glenn R. Simmons
By:----------------------------------------
Glenn R. Simmons, Chairman of the Board
Address: Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Telephone No.: 972.448.1400
NOTICE OF RIGHTS
Attached hereto you will find a proposed AGREEMENT AND GENERAL RELEASE
("Agreement") with respect to your termination from employment. It is required
by law that you be given at least twenty-one (21) days from the date of receipt
of the proposed Agreement within which to consider its terms. It is recommended
that you consult with an attorney regarding your legal rights with respect to
the Agreement during this 21-day period.
ACKNOWLEDGMENT OF RECEIPT
I acknowledge that I received a copy of CompX International Inc.'s
AGREEMENT AND GENERAL RELEASE by 10:00 a.m. (Dallas, Texas time) the 16th day of
July, 2002.
/s/Stuart M. Bitting
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Stuart M. Bitting
REAFFIRMATION OF AGREEMENT AND GENERAL RELEASE
[to be signed at the conclusion of the 7 day waiting period]
I, Stuart M. Bitting, acknowledge that I signed the AGREEMENT AND GENERAL
RELEASE ("Agreement") with CompX International Inc. and that during the seven
(7) day period immediately following my execution of the Agreement, I had the
right to revoke the Agreement at any time. By executing the Agreement, I also
understand that I agreed that I would receive no benefits thereunder unless and
until I executed this Reaffirmation.
By executing this Reaffirmation, I now affirm and attest that I (a) have
not heretofore, or contemporaneously with the execution of this Reaffirmation,
revoked, or attempted to revoke the Agreement, either by notice to CompX
International Inc., or otherwise, and (b) am now, by virtue of my execution of
this Reaffirmation, on or after seven (7) days after the execution of the
Agreement, fully bound by all of the terms and conditions of the Agreement.
EXECUTED in Dallas, Texas on July 23, 2002.
/s/Stuart M. Bitting
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Stuart M. Bitting
THE STATE OF TEXAS
COUNTY OF Dallas
BEFORE ME, the undersigned, a Notary Public, on this day personally
appeared Stuart M. Bitting, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed
the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 24th day of July, 2002.
[SEAL]
/s/Linda Roberts
-----------------------------------------
Notary Public, State of Texas