Exhibit 10(xii)
PART-TIME EMPLOYMENT AGREEMENT,
SETTLEMENT AGREEMENT,
GENERAL RELEASE AND NON-DISCLOSURE AGREEMENT
THIS PART-TIME EMPLOYMENT AGREEMENT, SETTLEMENT AGREEMENT, GENERAL RELEASE
AND NONDISCLOSURE AGREEMENT (hereinafter referred to as the "Agreement") is made
and entered into by and between Xxxxxxxx Xxxxxxxx Xxxxxxx ("Xxxxxxx") (as used
herein, "Xxxxxxx" includes herself and her legal representatives, agents, heirs,
executors, administrators, successors and assigns) and Bontex, Inc. ("Bontex")
(as used herein, "Bontex" includes its current or former employees, servants,
agents, officers, directors, shareholders, partners or partnerships, affiliated
companies, parents, subsidiaries, predecessors, successors, assigns, insurers,
underwriters, legal representatives or all of them), hereinafter collectively
referred to as "the Parties," for the following purposes and with reference to
the following facts:
WHEREAS, Xxxxxxx previously filed an action in the Superior Court of New
Jersey, Law Division, Essex County, No. ESX-L-2592-98, which was removed to the
United States District Court for the District of New Jersey, No. 98-1608 (AJL),
transferred to the United States District Court for the Western District of
Virginia, No. 98-0054-L, and dismissed by Order dated February 23, 1999
(hereinafter "the case"); and
WHEREAS, Bontex has denied all claims asserted in the case and otherwise;
and
WHEREAS, the Parties desire to enter into a part-time employment agreement
and to make a full and final settlement of any and all of Xxxxxxx'x claims,
without trial and without any additional adjudication of any issue of law or
fact, and without any admission with respect to any issues presented in the
case; and
WHEREAS, the parties recognize and agree that Xxxxxxx shall be free to
pursue and accept employment with an employer other than Bontex, and that such
employment shall not be deemed to be a breach or violation of the terms of this
Agreement unless specifically prohibited by this Agreement, nor shall any
remuneration received by Xxxxxxx from such employment in any way reduce or
eliminate any entitlement she may otherwise have as set forth in this Agreement,
regardless of the number of hours actually worked by Xxxxxxx with such new
employer or for Bontex pursuant to this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein and
for other good and valuable consideration, the undersigned agree as follows:
1. This Agreement shall not in any way be construed as an admission by
Bontex of any unlawful or wrongful acts whatsoever and Bontex specifically
denies and disclaims any liability to or wrongful acts against Xxxxxxx or
against any other person.
2. The Parties agree that Xxxxxxx'x full-time employment with Bontex is
terminated effective January 31, 2000, and that the parties will have no
obligations, responsibilities or duties to each other whatsoever except as set
forth in this Agreement.
3. Bontex agrees that effective February 1, 2000, Xxxxxxx shall be employed
by Bontex on a part-time basis, not to exceed in any event 15 hours per week, to
work on matters that are mutually agreeable to Xxxxxxx and Bontex. Towards this
end, Bontex shall pay Xxxxxxx a salary for her part-time employment, as follows:
(a) During the period February 1, 2000 through August 31, 2000, a
semi-monthly check in the amount of Two Thousand Seven Hundred Fifty Dollars
($2,750.00).
(b) During the period September 1, 2000 through October 31, 2004, a
semi-monthly check in the amount of One Thousand Seven Hundred Fifty Dollars
($1,750.00).
(c) These checks are to be forwarded and payable on or about the 15th
day and last day of each month therein by direct bank deposit to an account
designated in writing by Xxxxxxx.
(d) Bontex will pay these sums to Xxxxxxx, subject to applicable
withholding. In connection therewith, Bontex will pay the employer portion of
F.I.C.A. (i.e. Social Security) as well as the employer portion of any
applicable state unemployment insurance obligation, if any, and will issue to
Xxxxxxx a Form W-2 reflecting these payments. Xxxxxxx agrees that she shall be
solely responsible for any federal, state or other taxes that may be owed as a
result of any such payments made by Bontex pursuant to the terms of this
Agreement, other than the employer portion of F.I.C.A.
(e) Xxxxxxx understands and acknowledges that she is not and will not
be eligible to participate in any Bontex health, life or disability insurance
program. Further, Xxxxxxx hereby irrevocably and unconditionally waives her
right to participation, on and after February 1, 2000, in the Bontex Deferred
Compensation Plan and in the Bontex Contributory Defined Benefit Pension Plan.
Notwithstanding anything herein to the contrary, Xxxxxxx'x vested Bontex pension
rights, if any, Xxxxxxx'x vested Deferred Compensation Plan account, if any, and
Xxxxxxx'x COBRA rights, if any, shall continue unimpaired by this Agreement.
(f) In connection with Xxxxxxx'x part-time employment, Bontex shall
secure, at its expense during the term of her part-time employment, decreasing
term life insurance on Xxxxxxx'x life, in an amount equal to the remaining
employment payments due under this Agreement. Xxxxxxx designates the
beneficiaries of such insurance: Xxxxxxxx Xxxxxxx, Xxxxxxxx X. Xxxxxxx, Xxxx
Xxxx, Xxxx Xxxxxxx, III and Xxxxx Xxxxxxx. The life insurance policy will be
procured by Bontex within 60 days from the date hereof, subject to reasonable
delays as may be necessitated by the need for a medical examination or such
other matters as may delay the policy's issuance, and a copy shall be supplied
to Xxxxxxx promptly upon receipt. The parties anticipate
2
that the policy will be for a term ending on October 31, 2004. However, if the
policy is issued for an annual term, then a replacement policy shall be obtained
and supplied to Xxxxxxx on or promptly after the anniversary date of said
initial policy's issuance throughout the term of this Agreement. The policy
shall be issued by a duly licensed insurance company authorized to do business
in either the States of Virginia or New Jersey, and shall be in form reasonably
acceptable to counsel for Xxxxxxx. The policy amount shall be at least equal to
the total of the semi-monthly checks that Xxxxxxx would be entitled to receive
under this Agreement if she survived and fully performed from the date of her
death through October 31, 2004.
4. Any payments made under this Agreement are not assignable or otherwise
transferable by Xxxxxxx. Xxxxxxx'x part-time employment hereunder shall end on
the first to occur of (a) her death and (b) October 31, 2004.
5. Bontex agrees that upon execution of this Agreement by the parties that
it will deliver to Xxxxxxx the unencumbered title to the 1992 Ford Taurus which
Xxxxxxx presently is assigned. Bontex further agrees to pay the reasonable
expenses incurred in a one time replacement of the windshield and tires on the
vehicle, and will within ten (10) business days forward a check payable to
Xxxxxxx in the amount of $733.51 in full satisfaction of the obligations assumed
by this paragraph.
6. The Parties agree that the part-time employment described in paragraph 3
above and the automobile identified in paragraph 5 are received by Xxxxxxx in
full and complete settlement of all claims of every kind and description,
asserted or unasserted and known or unknown, predating the execution of this
Agreement, including, without limitation, damages, reimbursement, costs,
attorney's fees, interest, expenses or other sums allegedly arising in any
respect from Xxxxxxx'x employment with Bontex or the claims directly or
indirectly alleged, described or identified in the case, or otherwise arising
out of any relationship between Bontex and Xxxxxxx.
7. Xxxxxxx fully releases, acquits and forever discharges Bontex of and
from any and all claims, actions, causes of action, charges, judgments,
grievances, obligations, rights, demands, debts, damages, sums of money, wages,
employee or other benefits, attorney's fees, costs, losses, liabilities or
accountings of whatever nature, whether known or unknown, disclosed or
undisclosed, asserted or unasserted, in law or equity, contract, tort or common
law or otherwise, predating the execution of this Agreement. Xxxxxxx expressly
releases any and all claims arising from violations of the common law, the
federal Age Discrimination in Employment Act, as amended, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1866, the Civil Rights Act of 1991,
the Employee Retirement Income Security Act of 1974, the Americans With
Disabilities Act, the Federal Family and Medical Leave Act, Executive Orders
11246 and 11141, the New Jersey Law Against Discrimination, the New Jersey
Conscientious Employee Protection Act, the New Jersey Family Leave Act and any
and all claims of wrongful discharge or of employment discrimination on the
basis of race, color, sex, religion, national origin, age, disability or
handicap, affectional preference or sexual orientation, marital status or
veterans' status, or
3
from any other federal, state or local fair employment practices or civil rights
or shareholder rights law or any other statute, constitutional provision,
executive order, law or ordinance, and any other claims arising out of any
relationship between Bontex and Xxxxxxx, including those asserted in the
aforementioned case or the facts surrounding it, predating the execution of this
Agreement. Further, Xxxxxxx intends that this release shall discharge Bontex to
the maximum extent permitted by law. Xxxxxxx also warrants and represents that
she has not transferred or assigned all or any part of any of the claims
settled.
8. Expressly released hereby are any and all claims predating the execution
of this Agreement which Xxxxxxx may have had against Bontex by virtue of her
status as a Bontex shareholder, including any claims of mismanagement or any
other claim in the nature of a shareholder derivative or other suit. This
Agreement does not otherwise affect Xxxxxxx'x status going forward as a Bontex
shareholder, her ownership of Bontex stock or her status as executrix and/or
beneficiary of the Estate of Xxxxx Xxxxxxxx, or her vested Bontex pension
rights, if any, all of which shall continue unimpaired by this Agreement.
9. Xxxxxxx agrees that the existence of, terms, amount, and underlying
facts of the matters reflected in this Agreement shall be held strictly
confidential by her and her attorneys. Xxxxxxx further agrees that she will not
describe, characterize or disclose any such information in any manner
whatsoever, directly or indirectly, orally or in writing to anyone not a party
to this Agreement, with the exception of her accountants (whose agreement to be
bound by this confidentiality provision she shall secure before any such
disclosure). In the event that disclosure of this Agreement is requested by
judicial or governmental process or compulsion such as by subpoena, Xxxxxxx
agrees to provide Bontex with sufficient advance notice of such disclosure to
allow Bontex to protect its interest herein.
10. Except as set forth in this Agreement, Xxxxxxx agrees she will not seek
employment with nor will she be employed in the future by Bontex and she
expressly waives any rights to seek employment with or be employed by Bontex.
Expressly waived and released hereby is any claim of Xxxxxxx to any alleged
"lifetime" employment with Bontex. Xxxxxxx further agrees that during the term
of any payment made under this agreement, i.e., until October 31, 2004, she will
not be employed by, consult with or enter into any contract with Texon, Inc. or
any other competitor of Bontex. Xxxxxxx further agrees not to disclose to Texon,
Inc., any other competitor of Bontex or any other third party any trade secrets
or confidential business information of Bontex. Such employment, consultation,
contract or disclosure shall constitute a material breach of this Agreement.
11. Xxxxxxx acknowledges that pursuant to this Agreement she is receiving a
sum of money from Bontex in addition to anything to which she already was
entitled. Xxxxxxx also acknowledges that she has been advised that if she signs
this Agreement, she will be giving up important rights. She also represents that
she has been advised that she should consult with an attorney prior to signing
this Agreement and that she has done so. Xxxxxxx acknowledges that she has been
given at least twenty-one (21) days within which to consider the terms of this
4
Agreement. Xxxxxxx also understands that she may revoke this Agreement within
seven (7) days of her signing of the Agreement and that the Agreement shall not
become effective or enforceable until the seven (7) day revocation period has
expired.
12. The parties agree that any dispute regarding this Agreement shall be
subject to arbitration by the American Arbitration Association, Commercial
Arbitration Rules to apply, or other arbitrator selected by the parties. The
place of arbitration shall be in Essex County, New Jersey, with Virginia law to
apply. Neither party to this Agreement may suspend performance under this
Agreement, including any payments due hereunder, pending a determination by the
arbitrator. In any such arbitration proceeding, the party claiming breach shall
bear the burden of proof, and the substantially prevailing party shall be
entitled to an award of reasonable attorneys' fees.
13. The parties agree to be responsible for their own attorney's fees and
costs that may have been incurred in the case or otherwise, and will not make
any claim against each other for recovery of attorneys' fees, costs or other
expenses in connection with any claims settled and released herein.
14. Xxxxxxx represents that she has discussed all aspects of this Agreement
thoroughly with her attorney, that she understands all of the provisions herein,
and that she is entering into this Agreement voluntarily. She further represents
that in executing this Agreement, she does not rely on inducements, promises or
representations made by anyone other than those embodied herein.
15. Should any provision of this Agreement be declared or determined by any
Court to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal or invalid part, term,
or provision shall be deemed not to be a part of this Settlement Agreement,
General Release and Non-Disclosure Agreement.
16. The provisions of this Agreement shall be governed by the laws of the
Commonwealth of Virginia, and the Parties agree the exclusive forum for any
dispute concerning this Agreement shall be the United States District Court for
the Western District of Virginia or the Circuit Court for the County of
Rockbridge, Virginia.
IN WITNESS WHEREOF, the Parties have executed this Part Time Employment
Agreement, Settlement Agreement, General Release and Non-Disclosure Agreement.
5
Date: April 30, 2000 s/Xxxxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxx Xxxxxxx
________ OF ______________ )
) TO WIT:
________ OF ______________ )
I, a Notary Public in and for the jurisdiction aforesaid, do hereby certify
that XXXXXXXX XXXXXXXX XXXXXXX, appeared before me and acknowledged the same,
and that the foregoing is true according to the best of her knowledge,
information and belief and that she has executed this document as her free act
and deed.
SUBSCRIBED and SWORN to before me in my jurisdiction aforesaid this
30th day of April, 2000.
Notary Public
My Commission Expires: s/
----------------------
6
BONTEX, INC.
Date: April 28, 2000 By: s/Xxxxx X. Xxxxxxxx
Its CEO
State OF Virginia )
) TO WIT:
City OF Buena Vista )
On this 28th day of April, 2000, before me personally
appeared Xxxxx X. Xxxxxxxx, to me known and being duly
sworn, deposes and says that he is the CEO of BONTEX, INC.,
that he signed the Agreement as such officer pursuant to the authority vested in
him by law; that the within Agreement is the voluntary act of such corporation;
and he desires the same to be recorded as such.
s/Xxxxxxx X. Xxxxxxxxx
--------------------------------
Notary Public
My Commission Expires:
March 31, 2003
----------------------
7
