Exhibit 99.1
CONFIDENTIAL SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS
THIS CONFIDENTIAL SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE OF
CLAIMS ("Agreement") is made and entered into on January 2, 2007 by and between
Xxxx Insurance Brokerage Group of New England, LLC (referred to as "Xxxx"), on
the one hand, and BNS Holding, Inc. and BNS Co. (individually and collectively,
"BNS"), on the other hand, collectively hereinafter "the Parties."
WHEREAS, the Massachusetts Attorney General issued a Civil
Investigative Demand under Mass. G.L. ch. 93A ss. 6 to Xxxx involving Xxxx'
conduct as an insurance broker in Massachusetts ("Investigation"); and
WHEREAS, the Massachusetts Attorney General and Xxxx negotiated a
settlement involving certain alleged alterations, undisclosed fees, and
undisclosed commissions; and
WHEREAS, the Parties and their counsel conferred and arrived at a
mutually satisfactory resolution of all disputes and claims existing between
them arising out of the Investigation, the alleged alterations, undisclosed
fees, and undisclosed commissions; and
WHEREAS, the Parties wish to avoid protracted and extensive litigation
to resolve their differences and have agreed to a full settlement of all issues
and disputes among them, relating solely to the alleged alterations pertaining
to Xxxx' conduct, undisclosed fees of Xxxx, and undisclosed commissions paid to
Xxxx for or concerning policies brokered by Xxxx for BNS during the period from
2002 to the date of this Agreement;
NOW, THEREFORE, in consideration of the agreements, covenants, and
provisions contained in this Agreement, the Parties agree as follows:
1. PAYMENT BY XXXX. Xxxx agrees that, in consideration of this Agreement and
covenant not to xxx and other obligations that BNS has undertaken under this
Agreement, Xxxx will pay to BNS the total sum of Five Hundred and Seventeen
Thousand Eight Hundred and Forty-Seven Dollars and 91/100 Dollars ($517,847.91)
for reimbursement to BNS for all disputes and claims existing between them
arising out of the Investigation, the alleged alterations, undisclosed fees,
undisclosed commissions, and attorneys fees incurred by reason of the
Investigation.
2. RELEASE AND COVENANT NOT TO XXX BY BNS. In exchange for the payment described
in paragraph number 1, BNS, its predecessors, successors, assigns, agents,
directors, officers, past or present employees, representatives, attorneys,
divisions, subsidiaries, heirs, affiliates, hereby irrevocably and
unconditionally releases, covenants not to xxx, acquits and forever discharges
Xxxx, its owners, stockholders, predecessors, successors, assigns, agents,
directors, officers, past or present employees, representatives, divisions,
parent corporation, subsidiaries, heirs, affiliates (and agents, directors,
officers, employees, representatives and attorneys of such divisions,
subsidiaries and affiliates), and attorneys (collectively "Released Parties"),
or any of them, from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes of
action, suits, rights, demands, costs, losses, debts and expenses (including
attorney fees and costs actually incurred) of any nature whatsoever, known or
unknown, which BNS now has, owns, or holds or which BNS at any time heretofore
had, owned, or held against each of the Released Parties up and to including the
date of the execution of this Agreement, arising out of the Investigation, the
alleged alterations relating to Xxxx' conduct as a broker, undisclosed fees paid
to Xxxx, or undisclosed commissions paid to Xxxx ("Claim" and/or "Claims"),
including but not limited to: (a) all Claims under the Massachusetts Deceptive
Trade Practices Act, Mass. G.L. ch. 93A and all similar federal and state of
Rhode Island laws, arising out of such alterations, undisclosed fees, or
undisclosed commissions and (b) all Claims arising under any consumer fraud acts
for such alterations, undisclosed fees, or undisclosed commissions; and (c)
claims based on contract or quasi-contract, negligence, breach of fiduciary
duty, and/or fraud and/or tort or any other common law claims arising out of
such alterations, undisclosed fees, or undisclosed commissions. BNS covenants
and agrees not to bring any administrative, judicial, or other actions against
any of the Released Parties with respect to the aforementioned Claim or Claims.
It is expressly understood and agreed that nothing herein shall be deemed to
release, covenant not to xxx, acquit or forever discharge any of the Released
Parties for or from any claims arising out of any of the policies of insurance
procured by Xxxx, or any subsidiary or predecessor of Xxxx, for BNS or any
failure by Xxxx, or any subsidiary or predecessor of Xxxx, to procure any policy
or insurance coverage for BNS.
3. CONFIDENTIALITY AGREEMENT. BNS and Xxxx represent and agree that each will
keep the terms, amount and contents of this Agreement completely confidential,
and that they will not hereafter disclose any of those terms, amount and
contents to anyone, including, but by no means limited to, any past, present, or
prospective insurance broker or insurance agents or customers or prospective
customers of Xxxx, except as required pursuant to a lawful subpoena or court
order, and in such case not until Xxxx and its counsel or BNS and its counsel
have been provided, as soon as practicable, with written notice of such demand
for disclosure. BNS and Xxxx may disclose the terms of this Agreement to their
tax return preparers, auditors, financial advisors and/or attorneys so long as,
in advance of such communications, they require such individuals, as a condition
thereof, not to disclose the information to any person or entity, except as
required by lawful subpoena or court order consistent with the above provisions
in this paragraph. The obligations of confidentiality and non-disclosure set
forth in this paragraph shall not apply to (i) BNS's or its independent
auditors' disclosure of such information concerning the Agreement, which, in the
opinion of BNS's legal counsel or independent auditors, BNS must disclose in
order that it comply with its duties and/or obligations as a publicly traded
company, and to the extent that such disclosure shall be made, BNS shall
disclose only such information which its legal counsel or independent auditors
deem necessary, and (ii) any action or proceeding to enforce the terms of this
Agreement.
4. NON-DISPARAGEMENT. The Parties agree that from the date of this Agreement,
BNS, its directors, officers, and employees involved in securing or transacting
insurance coverage business and/or who conducted business with Xxxx while Xxxx
was acting as BNS's insurance broker and consultant, who participated in the
negotiation or resolution of this matter, or who has knowledge of this dispute,
will not make any disparaging statements (whether written or oral) concerning
Xxxx, or defame Xxxx, in any manner based on its conduct up to the execution of
this Agreement, which conduct was the subject of the Investigation. Nothing in
this paragraph shall limit the Parties from truthful testimony in any legal
action or to a government agency, or as may be required by law or may be
required in order to critically analyze in good faith the other's services in
connection with business.
5. TAX CONSEQUENCES. BNS agrees that neither Xxxx nor its officers, employees,
agents, or attorneys, have made any representations or warranties concerning the
tax treatment of any of the sums paid hereunder under federal or state laws, and
BNS has not relied upon any such warranties or representations. BNS is
responsible for any and all federal and state taxes in connection with the above
payments, including penalties and interest, if any. BNS will indemnify and
defend Xxxx and hold it harmless from and against all liability or obligations,
if any, in connection with payment of the settlement amounts, including but not
limited to taxes, interest and/or penalties.
6. NO ADMISSION OF LIABILITY. This Agreement shall not in any way be construed
as an admission by Xxxx of any unlawful acts whatsoever against BNS or any other
person. Xxxx specifically denies any liability, fault or wrongdoing with regard
to BNS or any other person, on the part of itself or any other person, its
employees or its agents. BNS understands and agrees that this Agreement does not
constitute and should not be construed as an admission of liability, fault or
wrongdoing. Xxxx has agreed to provide BNS the consideration described herein to
reach an expeditious and amicable resolution of any and all disputes between the
Parties, arising out of the Investigation, the alleged alterations relating to
Xxxx' conduct as a broker, undisclosed fees paid to Xxxx, or undisclosed
commissions paid to Xxxx prior to the date hereof and to minimize the time,
attorney fees, and costs that otherwise would be expended in the defense of
litigation concerning any of such disputes. This Agreement is entered into as a
compromise of all known and unknown claims and disputes between the Parties,
arising out of the Investigation, the alleged alterations relating to Xxxx'
conduct as a broker, undisclosed fees paid to Xxxx, or undisclosed commissions
paid to Xxxx prior to the date hereof and is not intended to, nor shall it be
construed as, an admission of any culpability, liability, or wrongdoing of any
kind whatsoever by Xxxx.
7. NO OTHER ACTIONS OR PROCEEDINGS. BNS represents that it has not filed any
complaints or lawsuits against Xxxx or any employee or former employee or agent
of Xxxx with any other local, state or federal agency or court, and that it will
not, at any time hereafter, file any complaint or lawsuit arising out of any
alleged alterations relating to Xxxx' conduct as a broker, undisclosed fees paid
to Xxxx, or undisclosed commissions paid to Xxxx prior to the date of this
Agreement. BNS agrees that it shall not xxx or bring any further action against
Xxxx arising out any alleged alterations relating to Xxxx' conduct as a broker,
undisclosed fees paid to Xxxx, or undisclosed commissions paid to Xxxx prior to
the date of this Agreement, except an action or proceeding to enforce the terms
of this Agreement.
8. REPRESENTATIONS BY BNS AND XXXX. BNS and Xxxx represent and agree that they
have thoroughly discussed all aspects of this Agreement with their attorneys,
that they have carefully read and fully understand all of the provisions of this
Agreement, and that they are knowingly and voluntarily entering into this
Agreement.
9. CLAIMS NOT ASSIGNED OR TRANSFERRED. BNS represents and warrants that it is
the legal party in interest with respect to the subject matter of this
Agreement, with legal title to all Claims hereby released. BNS represents and
warrants that it has not previously assigned or transferred, or purported to
assign or transfer, to any person or entity, any Claim or any portion thereof or
interest therein. BNS's arrangement with legal counsel concerning attorney's
fees is excepted from this paragraph.
10. BANKRUPTCY. BNS acknowledges that it has not filed for bankruptcy and has a
legal right to receive the funds to be paid to it pursuant to paragraph 1
herein.
11. BINDING UPON SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Parties and upon their heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of Released Parties and
each of them, and to their heirs, administrators, representatives, executors,
successors, and assigns.
12. GOVERNING LAW. This Agreement shall be interpreted, enforced and governed
under the laws of the Commonwealth of Massachusetts without regard to its choice
of law rules or principles. The language of all parts of this Agreement shall in
all cases be construed as a whole, according to its fair meaning, and not
strictly for or against any of the parties.
13. SEVERABILITY. Should any clause, paragraph, part, term, or provision of this
Agreement be declared or be determined by any court to be illegal or invalid,
the validity of the remaining clauses, paragraphs, parts, terms, or provisions
shall not be affected thereby and said illegal or invalid clause, paragraph,
part, term, or provision shall be deemed not to be a part of this Agreement.
14. CONSTRUCTION. This Agreement shall not be construed to have been drafted,
authored, or written by any specific party, or specifically to have been written
by Xxxx. Rather it is to be construed as an Agreement co-drafted, co-authored,
or co-written by BNS and Xxxx.
15. ENTIRE AGREEMENT. This Agreement contains the entire agreement between Xxxx
and BNS on the subject matter set forth herein and supersedes any and all prior
negotiations, arrangements, agreements, and representations concerning the
subject matter set forth herein. BNS represents and acknowledges that, in
executing this Agreement, it does not rely and has not relied upon any
representation or statement made by Xxxx or by Xxxx' agents, representatives or
attorneys with regard to the subject matter, basis or effect of this Agreement
or otherwise. BNS further represents and acknowledges that no oral understanding
or promises exist contrary to the terms of this Agreement.
ACCORDINGLY, Xxxx and BNS have executed this Confidential Settlement
Agreement and Full and Final Release of All Claims:
BNS CO.
By:
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Its:
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Subscribed and sworn to before me
this day of , 2007.
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Notary Public
BNS HOLDING, INC.
By: /s/ Xxxxxxx Xxxxxx
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Its: President
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Subscribed and sworn to before me
this day of , 2007.
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Notary Public
XXXX INSURANCE BROKERAGE GROUP OF NEW ENGLAND, LLC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: Secretary
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Subscribed and sworn to before me
this day of , 2007.
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Notary Public
