Exhibit 10.6
Termination Agreement by and between Xxxxxxx Xxxxxxx
and the Company dated March 21, 1995.
MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE
AND COVENANT NOT TO XXX
--------------------------------------------
This MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX
(the "Agreement") is made and entered into as of the date indicated below by and
between GENERAL BUSINESS SERVICES, INC., a Texas corporation ("GBS"), XXXXX X.
XXXXXXXX & CO., a Colorado corporation ("EKW") and THE XXXXX GROUP, INC., a
Delaware corporation ("Xxxxx") (collectively referred to as "the Companies") and
XXXXXXX X. XXXXXXX, individually ("Xxxxxxx").
WHEREAS, Xxxxxxx was employed by GBS from January 7, 1993 through March 21,
1995, most recently in the position of President;
WHEREAS, Xxxxxxx was employed by EKW from May 14, 1994 through March 21,
1995, most recently in the position of President;
WHEREAS, Xxxxxxx was employed as Chief Financial Officer by Xxxxx and/or a
company owned or affiliated with Xxxxx from April 1991 through December 1994;
WHEREAS, Xxxxxxx is currently indebted to GBS for the sum indicated on
Exhibit "A" attached hereto;
WHEREAS, prior to the execution of this Agreement, Xxxxxxx has voluntarily
resigned his employment with the Companies, effective March 21, 1995;
WHEREAS, prior to the execution of this Agreement, Xxxxxxx has fully read
this Agreement, has been given adequate time to consider this Agreement, a
reasonable opportunity to consult with advisors of Xxxxxxx'x choosing and
understands this Agreement;
WHEREAS, Xxxxxxx and the Companies desire to provide for an orderly
termination of the employment relationship and to settle fully and finally, in
the manner set forth herein, all differences between them which have arisen or
which might arise in the future, including but not limited to all claims and
controversies arising out of the employment relationship between Xxxxxxx and the
Companies.
NOW, THEREFORE, in consideration of the Recitals and mutual promises,
covenants and agreements set forth in this Agreement, Xxxxxxx and the Companies
covenant and agree as follows:
1. Xxxxxxx, for himself and on behalf of his heirs, assigns, successors,
executors, administrators and attorneys, IRREVOCABLY AND UNCONDITIONALLY
RELEASES, ACQUITS AND FOREVER DISCHARGES the Companies, any current, past or
future parent, subsidiaries, affiliated and related corporations, firms,
associations, partnerships and entities, and their successors and assigns, and
MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX -- PAGE 1
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the current and former owners, shareholders, directors, officers, employees,
agents, attorneys, representatives and insurers of said corporations, firms,
associations, partnerships and entities, and their guardians, successors,
assigns, heirs, executors and administrators (collectively referred to as
"Releasees"), from any and all claims, complaints, grievances, liabilities,
obligations, promises, agreements, damages, causes of action, and expenses
whatsoever, including attorney's fees and expenses.
2. Xxxxxxx, for himself and on behalf of his heirs, assigns, successors,
executors, administrators and attorneys, COVENANTS NOT TO XXX OR OTHERWISE
VOLUNTARILY CONSENT TO PARTICIPATE IN AN ACTION AGAINST any of the Releasees
under municipal, local, state or federal law, common or statutory, for any
actions or omissions whatsoever, whether known or unknown and whether connected
with the employment of Xxxxxxx by the Companies or not, except as may be
required in response to lawful judicial process.
3. From and after the effective date of this Agreement, Xxxxxxx agrees
that he will keep the terms, amount and fact of this Agreement STRICTLY AND
COMPLETELY CONFIDENTIAL and that he will not communicate or otherwise disclose
the terms, amount or fact of this Agreement to any employee of the Companies
(past, present or future) or to a member of the general public, except as may be
required in response to lawful judicial process.
4. Xxxxxxx waives and forever releases any right or rights he might have
to employment, re-employment, reinstatement with the Companies and any of the
Releasees named in this Agreement.
5. Xxxxxxx agrees to surrender all keys and tangible personal property
belonging to the Companies and represents that he has returned to and left in
the custody of the Companies all documents and property, including but not
limited to computers, computer netport cards, papers, keys, files, records,
books or other materials belonging to the Companies or any other Releasee,
whether in writing, or recorded by manual or electronic means, whether located
at Xxxxxxx'x residence or the offices of the Companies.
6. Xxxxxxx acknowledges that by virtue of his employment with the
Companies, he acquired knowledge and experience and/or was a participant or
witness to events and circumstances that may be important in pending and future
litigation, arbitration and/or administrative proceedings involving the
Companies. Xxxxxxx agrees to cooperate fully with all reasonable requests of the
Companies, at the Companies' expense, in conjunction with any such litigation,
arbitration and/or administrative proceedings involving the Companies which
cover a time period in which Xxxxxxx was employed by the Companies. Xxxxxxx also
agrees that he will not, without the prior written consent of the Companies,
cooperate with or assist any person or entity which is or which may become an
adverse
MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX -- PAGE 2
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party to the Companies or any of the Releasees in any litigation, arbitration
and/or administrative proceeding, or disclose or make available to such person
or entity any information or documents which may be relevant to such, except as
may be required by law or compulsory process.
7. Xxxxxxx acknowledges that during the course of employment, he had
access to and did receive confidential information about the Companies,
including customer lists and other trade secrets; Xxxxxxx represents and
covenants that he will in no way divulge, use or in any way employ such
confidential information; provided, however, that this Agreement does not
prohibit Xxxxxxx from using the occupational skill of franchising in his future
employment.
8. Xxxxxxx acknowledges that he is indebted to the GBS for the sum shown
on Exhibit "A" attached hereto.
9. Xxxxxxx and the Companies agree that they shall effect a final
reconciliation of all outstanding business expense advances and/or reports and
the like within 30 days after the effective date hereof.
10. Xxxxxxx and the Companies warrant and represent to one another that
they will not undertake any future conduct which is intended to damage any of
the franchise systems affiliated with the Companies or which discredits Xxxxxxx
or the Companies in the eyes of franchisees, the franchise community or third
parties.
11. In consideration for this Agreement, the Companies agree to do the
following:
(a) excuse and release Xxxxxxx'x indebtedness to GBS in the amount
shown on Exhibit "A" attached hereto; a portion of said amount, to be
determined in the final reconciliation of accounts referred to in Section
9 above, shall be added to Xxxxxxx'x W-2 for calendar year 1995 as income
and Xxxxxxx shall be liable for all tax obligations, if any, with respect
to this sum;
(b) pay Xxxxxxx the equivalent of his salary as of the effective date
of this Agreement in accordance with the Companies' usual bi-weekly payroll
period for a period commencing on Friday, March 31, 1995 and concluding on
Friday, June 9, 1995. The amounts paid shall be subject to withholding as
required by law;
(c) as to any obligations or liabilities not released in subsection
11(a), the Companies, for themselves and on behalf of any parent,
subsidiaries, affiliated and related corporations, firms, associations,
partnerships and entities, and their successors and
MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX -- PAGE 3
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assigns, and the current and former owners, shareholders, directors,
officers, employees, agents, attorneys, representatives and insurers of
said corporations, firms, associations, partnerships and entities, and
their guardians, successors, assigns, heirs, executors and administrators,
does irrevocably and unconditionally release, acquit and forever discharge
Xxxxxxx, his heirs, assigns, successors, executors, administrators and
attorneys, from any and all claims, complaints, grievances, liabilities,
obligations, promises, agreements, damages, causes of action and expenses
(including attorneys' fees and expenses) whatsoever, and covenants not to
xxx, or otherwise consent to voluntarily participate in any action against
Xxxxxxx, his heirs, assigns, successors, executors, administrators and
attorneys, under municipal, local, state or federal law, common or
statutory, for any actions or omissions whatsoever, whether known or
unknown and whether connected with the employment of Xxxxxxx by the
Companies or not, except as may be required by law or compulsory process.
12. Xxxxxxx and the Companies recognize that by entering into this
Agreement, the Companies and Xxxxxxx do not admit and do specifically deny any
violation of any local, state or federal law, common or statutory. Xxxxxxx and
the Companies further recognize that this Agreement has been entered into in
release and compromise of any claims which might be asserted by Xxxxxxx or the
Companies in regard to Xxxxxxx'x employment by the Companies and to avoid the
expense and burden of any litigation related thereto.
13. This Agreement constitutes the entire Agreement of the parties hereto
and supersedes all prior and contemporaneous negotiations and agreements, oral
or written. All rights, duties and remedies provided by this Agreement to the
parties hereto are independent of and not affected by any release or forbearance
which is part of this Agreement. All prior and contemporaneous negotiations and
agreements are deemed incorporated and merged into this Agreement and are deemed
to have been abandoned if not so incorporated. No representations, oral or
written, are being relied upon by either party in executing this Agreement,
other than the express representations of this Agreement. This Agreement cannot
be changed or terminated orally.
14. This Agreement shall be governed by and construed in accordance with
the laws of the state of Texas.
15. SIGNED AND EXECUTED at Waco, Texas this 21st day of March, 1995.
MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX -- PAGE 4
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THE COMPANIES:
THE XXXXX GROUP, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
GENERAL BUSINESS SERVICES, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, CEO
XXXXX X. XXXXXXXX & CO.
BY: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx, CEO
By my signature below, I represent that I have been given adequate time to
consider this Agreement. I have fully read and understand this Agreement and I
sign it of my own free will.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
THE STATE OF TEXAS (S)
(S)
COUNTY OF McLENNAN (S)
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXXXX, PRESIDENT of THE XXXXX GROUP, INC., and acknowledged that he
executed the same as the act of THE XXXXX GROUP, INC. in the capacity stated and
as the act of all other legal persons or entities claiming through or being
released through THE XXXXX GROUP, INC. for the purpose and consideration therein
expressed.
Given under my hand and seal of office on this 21st day of March, 1995.
[SEAL OF XXXXXXXX XXXXXXXXXX /s/ Xxxxxxxx Xxxxxxxxxx
APPEARS HERE] -----------------------------
Notary Public, State of Texas
MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX -- PAGE 5
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THE STATE OF TEXAS (S)
(S)
COUNTY OF McLENNAN (S)
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER of GENERAL BUSINESS SERVICES, INC.,
and acknowledged that he executed the same for the purpose and consideration
therein expressed, and in the capacity therein stated.
Given under my hand and seal of office on this 21st day of March, 1995.
[SEAL OF XXXXXXXX XXXXXXXXXX /s/ Xxxxxxxx Xxxxxxxxxx
APPEARS HERE] -----------------------------
Notary Public, State of Texas
THE STATE OF TEXAS (S)
(S)
COUNTY OF McLENNAN (S)
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXXXX, CHIEF EXECUTIVE OFFICER of XXXXX X. XXXXXXXX & CO., and
acknowledged that he executed the same for the purpose and consideration therein
expressed, and in the capacity therein stated.
Given under my hand and seal of office on this 21st day of March, 1995.
[SEAL OF XXXXXXXX XXXXXXXXXX /s/ Xxxxxxxx Xxxxxxxxxx
APPEARS HERE] -----------------------------
Notary Public, State of Texas
THE STATE OF TEXAS (S)
(S)
COUNTY OF McLENNAN (S)
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXXX X. XXXXXXX, and acknowledged that he executed the same for the purpose
and consideration therein expressed.
Given under my hand and seal of office on this 21st day of March, 1995.
[SEAL OF XXXXXXXX XXXXXXXXXX /s/ Xxxxxxxx Xxxxxxxxxx
APPEARS HERE] -----------------------------
Notary Public, State of Texas
MUTUAL SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX -- PAGE 6
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General Business Services, Inc.
Xxxx Xxxxxxx Bonus Activity
12/31/94 (PRELIMINARY)**
XXXXXXX
2.5% BONUS
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1994 GBS NET INCOME $351,049.05
ADD:
Provision for Federal Income Tax $243,793.29
Bonus Expensed during 1994 $20,227.07
PRE TAX/PRE BONUS INCOME $615,069.41 $15,376.74
LESS PAYMENTS DURING 1994:
ck 101202 Jul-94 ($9,713.41)
ck 101395 Oct-94 ($8,197.00)
ck 302440 Sep-94 ($5,000.00)
-----------
PRELIMINARY TOTAL OVERPAID TO XXXX FOR 1994 BONUS ($7,533.67)
===========
**THIS SCHEDULE IS SUBJECT TO CHANGE AS A RESULT OF AUDIT ADJUSTMENTS
WHICH MAY BE RECEIVED SUBSEQUENT TO TODAY'S DATE OF MARCH 20, 1995.
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