EXHIBIT 10.35
AGREEMENT AND RELEASE
BNS Co.
000 Xxxxxxxxxx Xxxx, Xxxxx 0
Xxxxx Xxxxxxxxx, XX 00000
Att: Xxxxxxx X. Xxxxxx
Chairman of the Board of Directors
Dear Xxx:
In consideration of the payment to me of $1,600,000 plus salary at my
current rate through the week ended January 26, 2003 (of which the last two
weeks installment will be paid January 31, 2003) less applicable tax
withholdings in each case (including parachute tax withholding where applicable)
(the "Payment") and other good and valuable consideration, the receipt of which
I hereby acknowledge, I agree as follows, intending to be bound hereby:
1. Release. I hereby release and forever discharge BNS Co. ("BNS"),
its agents, servants, employees, directors, officers, attorneys,
predecessors, successors, affiliates, and assigns from and
against, and covenant not to xxx any of such persons in respect
of, any and all claims, rights, and causes of action now
existing, both known and unknown, from the beginning of the world
to this date, including any and all claims arising out of a CIC
Agreement dated as of August 31, 1999 by and between BNS and me.
There is specifically excepted from this release (i) my rights to
access any currently vested benefit in the BNS Co. 401(k) plan,
(ii) any insurance benefits set forth below in Xxxxxxxxx 0 xxxxx,
(xxx) any rights to my pay for consulting services as referenced
in paragraph 3 below, and (iv) any rights to insurance or
indemnification that I may have under BNS's by-laws or applicable
liability policies. Among other things, the payment under this
Section 1 and the payments under Section 4 satisfy all of the
Company's obligations to me under the CIC Agreement.
2. Certain Tax Matters. In the event that the Payment or any portion
thereof is determined to be subject to the excise tax described at
Section 4999 of the Internal Revenue Code, I agree to indemnify
the Company and make it whole for any portion of such tax that
should have been withheld (in excess of the amounts actually
withheld by the Company) from the Payment plus any interest and
penalties related to any asserted failure by BNS properly to
withhold such tax or properly to report the Payment.
3. Consulting Services. After January 26, 2003 and termination of my
status on said date as an employee at the Company, I shall serve
as a consultant to the Company at the rate of $10,000 a month for
up to six months and at such times as shall be reasonably agreed
with the Chairman of the Board or the President or their designee,
it being understood that I shall not be expected to provide more
than five days consulting a month. My consulting services shall
relate to bringing the Board and such officers up-to-date with
respect to the real estate aspects of the Company, the financial
statements of the Company, any matters relating to Hexagon and
such other Company related matters as the Board or such officers
shall deem advisable.
The Company shall have no obligation to make any payments under
this Section 3 of this Agreement in the event there is Cause (as
defined below) for termination of my services under said Section.
Cause shall constitute "my negligence in the performance of or his
failure to perform his material duties and responsibilities to the
Company; the commission by me of theft, embezzlement or other
serious and substantial crimes or intentional or wrongful
engagement in competitive activity in violation of this Agreement;
or other deliberate or willful action by me that is materially
harmful to the business, interests or reputation of the Company".
4. Insurance Benefits. The Company will pay me on January 31, 2003
and January 31, 2004 the annual amounts of $10,854 for medical
insurance, $898 for dental insurance and $973 for life insurance
(with my eligibility for coverage and insurance being subject to
medical underwriting at my risk) - for each of two years.
5. Confidentiality, Etc. During the period of consulting services
and thereafter, I shall keep confidential and not disclose to any
other person (except in pursuance of my duties hereunder) any
proprietary or other confidential information of the Company. I
agree, until one year after termination of the period of
consulting services, not to make any comments about the Company
(or any of its directors, consultants or other representatives)
to any shareholder or other person and shall not, until one year
after termination of consulting services, directly or indirect,
own, work for or provide services to any other company or person
which would place me in a position of conflict of interest or
competition with the Company's real estate business in Rhode
Island and the United Kingdom. It is understood that I am a
stockholder in the Company.
IN WITNESS WHEREOF, I have duly executed and delivered this instrument
this 27th day of January, 2003.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Dated: 1-27-03
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Agreed and Accepted:
BNS Co.
BY: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
