Exhibit 10.38
AMENDMENT TO RESIGNATION AGREEMENT AND GENERAL RELEASE
This Amendment to Resignation Agreement and General Release (the
"Amendment") is entered into as of this _____ day of October, 1996 by and
between Xxxxx X. Xxxxxxxxxx ("Birkenshaw") and Atlas Corporation, a corporation
organized under the laws of Delaware ("Atlas").
Recitals
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X. Xxxxxxxxxx and Atlas are parties to the Resignation Agreement
and General Release made and entered into as of June 21, 1996 (the "Agreement").
B. Certain disputes and issues have arisen between Birkenshaw and
Atlas concerning the interpretation of, and performance under, the Agreement.
C. The parties have agreed to compromise their differences and to
settle their disputes by entering into this Amendment.
Agreement
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In consideration of the mutual promises contained herein, the parties
incorporate by reference and agree to the accuracy of the above Recitals and
further agree as follows:
1. Lump Sum Payment. With regard to Paragraph 3(a) of the Agreement,
Birkenshaw and Atlas agree as follows:
(a) In full satisfaction of Atlas's outstanding obligation as of
the date of this Amendment to make monthly installment payments as contemplated
by Paragraph 3(a)(ii) of the Agreement, the parties agree that Atlas shall pay
the amount of $54,000 to Birkenshaw. This amount shall not be reduced by the
amount of any expenses, advances, loans, or other amounts owed to Atlas and its
Affiliates (as that term is defined in the Agreement) which were known to Atlas
as of October 8, 1996. Atlas specifically waives its rights to deduct or
otherwise collect such amounts from Birkenshaw provided, however, that Atlas
specifically reserves and does not waive its right to collect and seek
reimbursement for any such amounts or expenses of which Atlas becomes aware at
any time after October 8, 1996.
(b) Birkenshaw warrants and represents that, as of October 1, 1996,
he is a Canadian citizen and resident for tax purposes, and that he is no longer
a United States citizen or resident for tax purposes. In reliance upon this
warranty and representation, Atlas agrees that it will not withhold payroll or
other taxes from the amount to be paid to Birkenshaw pursuant to subparagraph
(a). In the event that any taxing authority treats or attempts to treat that
payment as payment of wages subject to withholding and/or income taxes,
Birkenshaw agrees to pay his own taxes, attorneys' fees, penalties and interest
associated with or
arising from any such treatment or attempted treatment. He further agrees to
indemnify and hold Atlas harmless against any and all amounts (including,
without limitation, taxes, attorneys' fees, penalties and interest), which are
or become due from Birkenshaw or from Atlas to any taxing authority as a result
of this Amendment and the payment provided by the preceding subparagraph.
(c) Atlas's payment shall be made, within 5 business days after the
date of this Amendment, by depositing such amount as Birkenshaw may direct.
2. Xxxxx, Xxxxx & Company Limited. With regard to Xxxxx, Xxxxx &
Company Limited ("Xxxxx, Xxxxx"), Birkenshaw and Atlas agree as follows:
(a) Atlas hereby assigns all of its right, title, interest, and
ownership rights to Xxxxx, Xxxxx Account No. 300202-9 to Birkenshaw. Atlas and
Birkenshaw agree that Paragraph 3 (f) of the Agreement is superseded by the
preceding sentence of this subparagraph. Immediately after the transfer of this
account, Birkenshaw shall apply that account toward partial payment of the
invoice referred to in subparagraph (b).
(b) Birkenshaw agrees to assume all responsibility, and to hold
harmless and indemnify Atlas, with regard to the March 27, 1996 Xxxxx, Xxxxx
invoice to Atlas in the
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amount of US$24,000.00. Birkenshaw agrees to pay the full amount of that invoice
to Xxxxx, Xxxxx within 5 business days after receipt of the payment specified in
subparagraph (c).
(c) Within 5 business days after the date of this Amendment, Atlas
shall pay Birkenshaw the amount of $6,000 in consideration for his promises set
forth in subparagraphs (a) and (b). This amount is in addition to the amount
referred to in Paragraph 1 of this Amendment.
(d) Concurrently with the execution of this Amendment, Atlas and
Birkenshaw shall execute a document, in the form of that attached hereto as
Exhibit A, advising Xxxxx, Xxxxx of their agreement set forth in subparagraphs
(a) and (b). Atlas shall then deliver the original of that document to Xxxxx,
Xxxxx.
3. Medical Benefits. As of the date of this Amendment, Birkenshaw
hereby waives all right, on behalf of himself and his dependents, to be provided
with coverage under Atlas's medical benefits plan pursuant to Paragraph 3(d) of
the Agreement.
4. Status. Birkenshaw and Atlas agree to delete Paragraph 3(c) of the
Agreement, and they further agree that, as of the effective date of this
Amendment, Birkenshaw is not an Atlas employee in any sense or capacity.
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5. Effect of Agreement. Except to the extent that it has been
specifically modified or amended by this Amendment, the Agreement remains in
full force and effect, and Birkenshaw and Atlas agree that the Agreement and
Amendment, taken together, constitute the entire agreement between the parties
hereto.
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
ATLAS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
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[LETTERHEAD OF ATLAS CORPORATION]
October 11, 1996
Mr. X. X. Xxxx
Xxxxx, Xxxxx & Company Limited
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Dear Xx. Xxxx:
Atlas Corporation hereby transfers all of its right, title and interest to
Account No. 300202-9 (Account Name: Atlas Corporation) to Xxxxx X. Xxxxxxxxxx.
Xxxxx X. Xxxxxxxxxx simultaneously assumes all responsibility for payment of the
March 27, 1996 invoice to Atlas Corporation in the amount of US$24,000.00.
ATLAS CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Vice President Finance
Agreed to on October 11, 1996
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
Xxxxx, Xxxxx & Company Limited hereby agrees to the assignment of all ownership
rights of Atlas' Account #300202-9 to Xxxxx X. Xxxxxxxxxx and further agrees to
release Atlas Corporation from any and all obligations heretofore due Xxxxx &
Xxxxx.
Agreed to on October 15, 1996
/s/ Xxxxx & Xxxxx Company Limited
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Xxxxx & Xxxxx
Title: Clerk
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