GENERAL RELEASE AGREEMENT
Exhibit 10.3
WHEREAS Xxxx Xxxxxx (“Xxxxxx”) was employed by Xxxxxxx & Xxxxxxx, Ltd. (“Xxxxxxx & Xxxxxxx”) until February 5, 2009; and
WHEREAS, Xxxxxxx & Xxxxxxx contends Xxxxxx was terminated for “Just Cause” as defined by Xxxxxx’x Employment Agreement with Xxxxxxx & Xxxxxxx dated March 19, 2007 as amended August 28, 2007, and, therefore, contends Xxxxxx is not entitled to any “Termination Compensation” as defined by Xxxxxx’x Employment Agreement with Xxxxxxx & Xxxxxxx dated March 19, 2007 as amended August 28, 2007; and
WHEREAS, Xxxxxx contends he was terminated without cause and is entitled to “Termination Compensation” as defined by Xxxxxx’x Employment Agreement with Xxxxxxx & Xxxxxxx dated March 19, 2007 as amended August 28, 2007; and
WHEREAS, the parties have agreed that all disputes, matters, and things between them are resolved and they have entered into this General Release Agreement (“Agreement”) to memorialize the agreement they have reached this 13th day of May 2009;
NOW, THEREFORE, the Parties agree as follows:
1. Payment. For and in consideration of the promises, releases, and agreements made herein by Xxxxxx, Xxxxxxx & Xxxxxxx agrees to pay Xxxxxx the gross sum of One Hundred Forty Thousand Dollars ($140,000.00), allocated as follows:
a) One Hundred Twenty-Five Thousand Dollars ($125,000.00) to be paid to Xxxx Xxxxxx, to be paid in two payments of Sixty-Two Thousand Five Hundred Dollars ($62,500.00). The first payment of Sixty-Two Thousand Five Hundred Dollars ($62,500.00) will be mailed to the last home address Xxxxxxx & Xxxxxxx has on record for Xxxxxx within 14 days of Xxxxxxx & Xxxxxxx’x receipt of this Agreement, which has been executed by Xxxxxx, provided Xxxxxx does not revoke his signature as defined in Paragraph 8 of this Agreement. The second payment of Sixty-Two Thousand Five Hundred Dollars ($62,500.00) will be mailed to the last home address Xxxxxxx & Xxxxxxx has on record for Xxxxxx within 30 days after the first payment of Sixty-Two Thousand Five Hundred Dollars ($62,500.00). These payments to Xxxx Xxxxxx as defined in Paragraph 1(a) of this Agreement will be made as wages, and all appropriate tax and other withholdings will be made from them, and these payments will be reflected on a W-2 issued to Xxxxxx.
b) Fifteen Thousand Dollars ($15,000.00) to be paid as attorneys’ fees to the law firm of Xxxxx Xxxxx Xxxxxxxxxxx LLP, to be paid in two payments of Seven Thousand Five Hundred Dollars ($7,500.00). The first payment of Seven Thousand Five Hundred Dollars ($7,500.00) will be mailed to Xxxxx Xxxxx Xxxxxxxxxxx LLP within 14 days of the Xxxxxxx & Xxxxxxx’x receipt of this Agreement, which has been executed by Xxxxxx, provided Xxxxxx does not revoke
his signature as defined in Paragraph 8 of this Agreement. The second payment of Seven Thousand Five Hundred Dollars ($7,500.00) will be mailed to Xxxxx Xxxxx Xxxxxxxxxxx LLP within 30 days of the first payment of Seven Thousand Five Hundred Dollars ($7,500.00). No taxes will be withheld from these payments as defined in Paragraph 1(b) of this Agreement. These payments as defined in Paragraph 1(b) of this Agreement will be reflected on a 1099 issued to Xxxxxx and Xxxxx Xxxxx Xxxxxxxxxxx LLP.
Xxxxxx understands and agrees that none of the Released Parties, as defined in Paragraph 2 of this Agreement, including their attorneys, have made any express or implied representations to him with respect to the tax consequences of the payments described in Paragraph 1 of this Agreement. All taxes and other obligations related to the payments, if any, shall be the sole obligation of Xxxxxx. Xxxxxx agrees to indemnify, defend, and hold Xxxxxxx & Xxxxxxx and the Released Parties harmless for any taxes, interest, penalties, liens, levies, claims, lawsuits, administrative actions, or costs associated therewith, including, but not limited to, any legal fees, costs, and disbursements, which are related to or assessed as a result of any treatment of the payment referred to in Paragraph 1(b) of this Agreement.
2. In addition to the monetary payments described in Paragraph 1(a) and Paragraph 1(b), Xxxxxxx & Xxxxxxx will withdraw its appeal of Xxxxxx’x claim for unemployment benefits, and will not otherwise challenge that claim before the North Carolina Employment Security Commission.
3. Release by Xxxxxx. For and in consideration of the payments made by Xxxxxxx & Xxxxxxx as described in Paragraph 1, the sufficiency of which is hereby acknowledged, Xxxxxx agrees, represents, and promises as follows:
For himself, his heirs, and executors, he irrevocably and unconditionally releases and forever discharges to the fullest extent permitted by law, individually and collectively, Xxxxxxx & Xxxxxxx; Xxxxxxx & Xxxxxxx (HK), Ltd.; Guangzhou Xxxxxxx & Xxxxxxx Trading Limited; Bird Capital Group, Inc. and each of their present and former shareholders, officers, directors (specifically including, but not limited to, Xxxxxxx X. Xxxx) employees, representatives, agents, predecessors, successors, affiliates, subsidiaries, assigns, any employee benefit plans sponsored or administered by Xxxxxxx & Xxxxxxx, and all persons acting by, through, or in concert with them (all hereinafter collectively referred to as “Released Parties”), of and from any and all charges, claims, complaints, demands, liabilities, causes of action, losses, costs, or expenses of any kind whatsoever (including related attorneys’ fees and costs), known or unknown, suspected or unsuspected, that Xxxxxx may now have, has ever had, or may have in the future against any one or all of the Released Parties by reason of any act, omission, transaction, or event occurring up to and including the date of this Agreement, including, but not limited to, claims under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans With Disabilities Act, the Employee Retirement Income Security Act of 1974, the Post Civil War Civil Rights Act (42 U.S.C. §§ 1981-88), the Equal Pay Act, The Occupational Safety and Health Act, the North Carolina Retaliatory Employment Discrimination Act (N.C. Gen. Stat. §§ 95-240 –
95-245), the North Carolina Wage & Hour Act, the Family and Medical Leave Act, the United States Constitution, and the North Carolina Constitution, all as amended, as well as any other federal, state, or local claim or law relating to wrongful discharge, emotional distress, employment discrimination, or retaliation, or any claims for breach of contract or breach of any employment agreement.
Xxxxxx also understands and agrees that this Agreement extinguishes all claims, whether known or unknown, foreseen or unforeseen, and expressly waives any rights or benefits under any law or judicial decision which provides in substance or effect that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the general release.
It is expressly understood and agreed by the parties that this Agreement is in full accord, satisfaction, and discharge of any and all doubtful and/or disputed claims by Xxxxxx against the Released Parties, and that this Agreement has been signed with the express intent of extinguishing all claims, obligations, actions, or causes of action as herein described.
Xxxxxx acknowledges that he has received all monies due to him from any one or all of the Released Parties except for the payments provided in Paragraph 1 of this Agreement, and is not entitled to any other monies from the Released Parties for any reason, including compensatory damages, punitive damages, or attorneys’ fees, costs, and/or disbursements, known or unknown, asserted or unasserted claims for lost or unpaid wages and/or severance benefits, claims for damages to reputation, claims for physical, mental, and personal injuries, and resulting emotional distress, pain, and suffering, as well as all other statutory claims, and/or common law claims and/or contract claims, whether express, implied, oral, or written.
Notwithstanding the foregoing, this Agreement does not apply to any claims or rights that arise after the date of this Agreement, including such claims that may arise under the Age Discrimination in Employment Act or under any other applicable law, including a claim for breach of this Agreement, after the date that this Agreement is signed.
4. Release by Xxxxxxx & Xxxxxxx: For and in consideration of the release, confidentiality and non-disparagement agreements made by Xxxxxx as described in Paragraphs 1, 7 and 8, the sufficiency of which is hereby acknowledged, Xxxxxxx & Xxxxxxx irrevocably and unconditionally releases and forever discharges to the fullest extent permitted by law, Xxxx Xxxxxx, of and from any and all charges, claims, complaints, demands, liabilities, causes of action, losses, costs, or expenses of any kind whatsoever (including related attorneys’ fees and costs), known or unknown, suspected or unsuspected, that it may now have, has ever had, or may have in the future against him by reason of any act, omission, transaction, or event occurring up to and including the date of this Agreement.
5. No Assignment, and/or Claims, Charges, or Actions. Xxxxxx represents that he has no pending lawsuits, charges, or proceedings of any kind against Xxxxxxx &
Xxxxxxx in any forum or before any agency, except his claim for unemployment benefits. Xxxxxx further represents that he has not assigned to any person and/or entity anything that he releases under this Agreement, and that no other person and/or entity has a right to anything that he releases under this Agreement. Xxxxxx further represents that he has the full right to enter into this Agreement.
6. Full Payment. Xxxxxx acknowledges that the payments described herein are full compensation for any claim of discrimination, failure to accommodate, retaliation, wrongful termination, and/or breach of contract, and all claims have been fully settled and resolved between the parties.
7. Confidentiality. Except as otherwise allowed in this paragraph, neither Xxxxxx, nor his respective agents, representatives, successors, and assigns has or will disclose or discuss or cause to be known or cause anyone in privity with them to disclose or discuss, either directly or indirectly, to or with any other person, firm, corporation, association, organization, or entity the facts and/or terms of this Agreement (including the monetary terms). Xxxxxx specifically and explicitly agrees that he has instructed and will continue to instruct Xxxxx Xxxxx Xxxxxxxxxxx LLP to not disclose or discuss with any person, firm, corporation, association, organization, or entity the facts and/or terms of this Agreement (including the monetary terms). The parties agree that Xxxxxx may disclose the fact that Xxxxxx’x claims against the Company have been resolved, as long as the specific terms of the Agreement, or any reference to the fact, amount or size of payment to Xxxxxx is not disclosed. The parties also agree that the Company may make such disclosures as are required by its status as a publically traded company. This confidentiality covenant expressly includes but is not limited to any person or entity that is in any way connected with the media, including, but expressly not limited to, the print media, television, radio, the internet, and/or any other form of dissemination of information to the public. Notwithstanding the confidentiality covenant in this Paragraph 7 of this Agreement, Xxxxxx may make disclosure of the monetary terms of this Agreement to: (a) legal counsel; (b) spouse; (c) personal tax or financial advisor; provided Xxxxxx informs said persons of this non-disclosure provision before such discussion, and said persons agree to be bound by this non-disclosure provision; (d) a court of competent jurisdiction when it is necessary evidence in the event of a lawsuit involving the alleged breach of this Agreement; and/or (e) when he is compelled by order of a court or governmental agency of competent jurisdiction but, before making such disclosure, the individual or entity must be advised of the confidential nature of the information. Xxxxxx agrees and acknowledges that any such prohibited disclosure by him shall constitute a violation of the terms of this Agreement and shall require him to return and forfeit to Xxxxxxx & Xxxxxxx the payments described in Paragraph 1 of this Agreement. The forfeiture of such monies by Xxxxxx shall not relieve Xxxxxx of his obligations as recited in this Agreement. If Xxxxxx breaches this confidentiality obligation, Xxxxxxx & Xxxxxxx shall have the right to file a lawsuit against Xxxxxx for such breach in the competent court of its choosing; and Xxxxxx consents to personal jurisdiction of any Court in North Carolina for these purposes. Xxxxxx further agrees that, if the court concludes that he violated any provision of the confidentiality obligation in this paragraph, that in addition to any damages awarded against him, he shall be liable to Xxxxxxx & Xxxxxxx for all costs and reasonable attorneys’ fees incurred by Xxxxxxx & Xxxxxxx in such lawsuit. Notwithstanding the foregoing, Xxxxxx is no longer
bound by the confidentiality obligations in this paragraph as to any terms of this Agreement which have become public knowledge due to disclosure by someone other than Xxxxxx.
8. Nondisparagement. Xxxxxx represents and agrees that he has not, and will not, except to the extent required by law, disparage or defame Bird Capital Group, Inc. or Xxxxxxx & Xxxxxxx, any person associated with Bird Capital Group, Inc. or Xxxxxxx & Xxxxxxx, or any programs or products offered by or through Bird Capital Group, Inc. or Xxxxxxx & Xxxxxxx. Xxxxxxx & Xxxxxxx will instruct its officers and directors that, except to the extent required by law, they shall not disparage or defame Xxxxxx. In response to inquiries from potential employers directed to Neill Boss, Controller, the company will only confirm dates of employment, salary received, position held and that Xxxxxx’x employment was terminated due to cost cutting measures.
9. Additional Acknowledgements. Xxxxxx acknowledges that:
| • | I have read this Agreement, and I understand its legal and binding effect. I am knowingly and voluntarily executing this Agreement of my own free will. |
| • | No other promises or agreements of any kind have been made to or with me by any person or entity to cause me to sign this Agreement. |
| • | I have had the opportunity to seek, and Xxxxxxx & Xxxxxxx has expressly advised me to consult with, an attorney and to seek legal counsel prior to signing this Agreement. |
| • | I have been given at least 21 days from the date I received this document to consider the terms of this Agreement. |
| • | I understand that in signing this Agreement, I am releasing the Released Parties from any and all claims I may have against them, including, but not limited to, claims under the Age Discrimination in Employment Act. |
| • | The consideration offered to me in this Agreement, including the release from Xxxxxxx & Xxxxxxx and its agreement to compromise the disputed claim for severance, is in excess of anything of value to which I am otherwise entitled. As of this date, I have received all compensation, wages, and other remuneration of any kind due to me from Xxxxxxx & Xxxxxxx. I acknowledge that no other wages, compensation, remuneration, monies, or payments of any kind are due to me. |
10. Revocation of Signature. I understand that, if I am age 40 or more, I can change my mind and revoke my signature on this Agreement within seven (7) days after signing it by delivering notice of such revocation to Xxxxxxx X. Xxxx, CEO at Xxxxxxx & Xxxxxxx, Ltd., 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx X, Xxxxxxxxxxx, XX 00000. I understand that, unless properly revoked by me during this seven-day period, this Agreement will become effective on the eighth day after I sign this Agreement.
11. Severability. All provisions of this Agreement are severable, and if any of them is determined to be invalid or unenforceable for any reason, the remaining provisions and portions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.
12. No Admission of Liability. The parties to this Agreement agree and acknowledge that this Agreement does not constitute an admission of liability or wrongdoing on the part of any party to this Agreement.
13. No Reinstatement, Reapplication, or Rehire. To the full extent permitted by law, Xxxxxx gives up and releases (waives) any right he may have to reinstatement, rehire, and/or reemployment with Xxxxxxx & Xxxxxxx and/or any entity owned, operated by, or associated with Xxxxxxx & Xxxxxxx, and he further agrees not to seek and/or accept employment with Xxxxxxx & Xxxxxxx and/or any entity owned, operated by, or associated with Xxxxxxx & Xxxxxxx. Xxxxxx further understands and agrees that the Released Parties may reject with impunity any application for employment that he may make and treat any such application as a nullity. Xxxxxx waives and releases any claims and causes of action he might have otherwise because of such rejection. Xxxxxx further understands and agrees that if the Released Parties discover that they have inadvertently hired Xxxxxx, they have the right to terminate him immediately without cause. Xxxxxx waives any claims and causes of action he might have otherwise because of such termination.
14. Continuing Obligations. Xxxxxx acknowledges and agrees that he continues to be bound by the provisions of Paragraph 8 “Covenant Not to Compete,” Paragraph 9, “Confidentiality,” and Paragraph 10, “Proprietary Information,” of the Employment Agreement he signed with Xxxxxxx and Xxxxxxx, a copy of which is attached to this Agreement as Exhibit A.
15. Entire Agreement; Persons/Entities Bound by the Agreement. This Agreement sets forth the entire understanding of the parties to this Agreement. All prior negotiations are merged into this Agreement. All understandings and agreements are expressly set forth herein. No party has made any settlement, representation, warranty, or other commitment in connection with the issues addressed in this Agreement that has not been expressly set forth herein. No party has relied upon or been induced by any agreement, representation, warranty, or other commitment from another party that has not been expressly set forth herein. This Agreement shall be binding upon and inure to the benefit of Xxxxxx and to the benefit of each of the Released Parties and their respective successors and assigns.
16. Amendments. No amendment, modification, termination, or waiver of all or any part of this Agreement shall be valid unless the same is in writing and signed by all parties hereto.
17. No Waiver. No failure or delay by any party to enforce any right specified by this Agreement will operate as a waiver of such right, nor will any single or partial exercise of a right preclude any further or later enforcement of the right.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of North Carolina.
19. Each person signing this Agreement on behalf of a party warrants that he or she is duly authorized to execute this Agreement.
20. Miscellaneous. All executed copies of this Agreement, and photocopies thereof, shall have the same force and effect, and shall be as legally binding and enforceable as the original.
21. XXXX XXXXXX ACKNOWLEDGES AND AGREES THAT HE HAS BEEN ADVISED THIS AGREEMENT IS A BINDING LEGAL DOCUMENT, AND THAT HE HAS HAD ADEQUATE TIME AND REASONABLE OPPORTUNITY TO REVIEW IT, AND THAT IN EXECUTING THIS AGREEMENT, HE HAS ACTED VOLUNTARILY AND HAS NOT RELIED UPON ANY REPRESENTATION MADE BY ANY OF THE RELEASED PARTIES OR THEIR REPRESENTATIVES REGARDING THIS AGREEMENT’S SUBJECT MATTER AND/OR EFFECT.
THE NEXT PAGE IS THE SIGNATURE PAGE.
| AGREED AND UNDERSTOOD: | ||||||||
| Xxxx Xxxxxx | Xxxxxxx & Xxxxxxx, Ltd. | |||||||
| By: | /s/ Xxxx Xxxxxx |
By: | /s/ Xxxxxx Xxxxxxxxxx | |||||
| Xxxx Xxxxxx | Xxxxxx Xxxxxxxxxx, Chairman | |||||||
| Date: | 5/13/09 |
Date: | 5/16/09 | |||||
