GENERAL RELEASE AGREEMENT
Exhibit 10.2
WHEREAS Xxxxxx X. Xxxxx (“Xxxxx”) was employed by Xxxxxxx & Xxxxxxx, Ltd. (“Xxxxxxx & Xxxxxxx”) until February 5, 2009; and
WHEREAS, Xxxxxxx and Xxxxxxx contends Xxxxx was terminated for “Just Cause” as defined by Xxxxx’x Employment Agreement with Xxxxxxx and Xxxxxxx dated December 5, 2007, and, therefore, contends Xxxxx is not entitled to any “Termination Compensation” as defined by Xxxxx’x Employment Agreement with Xxxxxxx and Xxxxxxx dated December 5, 2007; and
WHEREAS, Xxxxx contends he was terminated without cause and is entitled to “Termination Compensation” as defined by Xxxxx’x Employment Agreement with Xxxxxxx and Xxxxxxx dated December 5, 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 27th day of April 2009;
NOW, THEREFORE, the Parties agree as follows:
1. Payment. For and in consideration of the promises, releases, and agreements made herein by Xxxxx, Xxxxxxx & Xxxxxxx agrees to pay Xxxxx the gross sum of Sixty Thousand Four Hundred Sixteen Dollars and Sixty-Eight Cents ($60,416.68), allocated as follows:
a) Forty-Eight Thousand Three Hundred Thirty-Three Dollars and Thirty-Four Cents ($48,333.34) to be paid to Xxxxxx X. Xxxxx, to be paid in two payments of Twenty-Four Thousand One Hundred Sixty-Six Dollars and Sixty-Seven Cents ($24,166.67). The first payment of Twenty-Four Thousand One Hundred Sixty-Six Dollars and Sixty-Seven Cents ($24,166.67) will be mailed to the last home address Xxxxxxx & Xxxxxxx has on record for Xxxxx within 14 days of Xxxxxxx & Xxxxxxx’x receipt of this Agreement, which has been executed by Xxxxx, provided Xxxxx does not revoke his signature as defined in Paragraph 8 of this Agreement. The second payment of Twenty-Four Thousand One Hundred Sixty-Six Dollars and Sixty-Seven Cents ($24,166.67) will be mailed to the last home address Xxxxxxx & Xxxxxxx has on record for Xxxxx within 30 days after the first payment of Twenty-Four Thousand One Hundred Sixty-Six Dollars and Sixty-Seven Cents ($24,166.67). These payments to Xxxxxx X. Xxxxx 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 Xxxxx.
b) Twelve Thousand Eighty-Three Dollars and Thirty-Four Cents ($12,083.34) to be paid as attorneys’ fees to the law firm of Glenn, Mills, Xxxxxx & Xxxxxxx, P.A., to be paid in two payments of Six Thousand Forty-One Dollars
and Sixty-Seven Cents ($6,041.67). The first payment of Six Thousand Forty-One Dollars and Sixty-Seven Cents ($6,041.67) will be mailed to Glenn, Mills, Xxxxxx & Xxxxxxx, P.A. within 14 days of the Xxxxxxx & Xxxxxxx’x receipt of this Agreement, which has been executed by Xxxxx, provided Xxxxx does not revoke his signature as defined in Paragraph 8 of this Agreement. The second payment of Six Thousand Forty-One Dollars and Sixty-Seven Cents ($6,041.67) will be mailed to Glenn, Mills, Xxxxxx & Xxxxxxx, P.A. within 30 days of the first payment of Six Thousand Forty-One Dollars and Sixty-Seven Cents ($6,041.67). 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 Xxxxx.
c) In addition to the monetary payments described in Paragraph 1(a) and Paragraph 1(b), Xxxxxxx & Xxxxxxx will not oppose Xxxxx’x claim for unemployment benefits.
Xxxxx 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 payment, if any, shall be the sole obligation of Xxxxx. Xxxxx 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. Release. For and in consideration of the consideration of the payments made by Xxxxxxx & Xxxxxxx as described in Paragraph 1, the sufficiency of which is hereby acknowledged, Xxxxx 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 Xxxxx 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.
Xxxxx 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 Xxxxx 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.
Xxxxx acknowledges that he has received all monies due to him from any one or all of the Released Parties, 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.
Xxxxxxx & Xxxxxxx has no pending claims against Xxxxx and expressly waives any right to bring claims or causes of action against Xxxxx as a result of the work he performed as an employee and agent of Xxxxxxx & Xxxxxxx.
3. No Assignment, and/or Claims, Charges, or Actions. Xxxxx represents that he has no pending lawsuits, charges, or proceedings of any kind against Xxxxxxx & Xxxxxxx in any forum or before any agency. Xxxxx 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. Xxxxx further represents that he has the full right to enter into this Agreement.
4. Full Payment. Xxxxx 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.
5. Confidentiality. Except as otherwise allowed in this paragraph, neither Xxxxx, 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). Xxxxx specifically and explicitly agrees that he has instructed and will continue to instruct Glenn, Mills, Xxxxxx & Xxxxxxx, P.A. 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). 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 of this Agreement, Xxxxx may make disclosure of the monetary terms of this Agreement to: (a) legal counsel; (b) spouse; (c) personal tax or financial advisor; provided Xxxxx 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. Xxxxx 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 Xxxxx shall not relieve Xxxxx of his obligations as recited in this Agreement. If Xxxxx breaches this confidentiality obligation, Xxxxxxx & Xxxxxxx shall have the right to file a lawsuit against Xxxxx for such breach in the competent court of its choosing; and Xxxxx consents to personal jurisdiction of such court over him for these purposes. Xxxxx 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.
6. Nondisparagement. Xxxxx 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 not, except to the extent required by law, disparage or defame Xxxxx, and will provide the original signed version of the letter attached as Exhibit A within 10 days of Xxxxx’x signature on this Agreement, provided that Xxxxx does not revoke his signature as defined in paragraph 8 of this Agreement. Xxxxxxx & Xxxxxxx will also change its personnel records to reflect that Xxxxx’x termination of employment was due to economic reasons.
7. Additional Acknowledgements. Xxxxx 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. |
| • | The consideration given to me for the claims being released in this Agreement is in excess of any benefits to which I am otherwise entitled. |
| • | 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 is in excess of any benefits 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. |
8. Revocation of Signature. I understand that, if I am age 40 or more, I can change my mind and revoke my signature on the 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.
9. 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.
10. 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.
11. No Reinstatement, Reapplication, or Rehire. To the full extent permitted by law, Xxxxx 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. Xxxxx 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. Xxxxx waives and releases any claims and causes of action he might have otherwise because of such rejection. Xxxxx further understands and agrees that if the Released Parties discover that they have inadvertently hired Xxxxx, they have the right to terminate him immediately without cause. Xxxxx waives any claims and causes of action he might have otherwise because of such termination.
12. Continuing Obligations. Xxxxx 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 B.
13. 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 Xxxxx and to the benefit of each of the Released Parties and their respective successors and assigns.
14. 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.
15. 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.
16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of North Carolina.
17. 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.
18. XXXXXX X. XXXXX 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:
| Xxxxxx X. Xxxxx | Xxxxxxx & Xxxxxxx, Ltd. | |||||||
| By: | /s/ Xxxxxx X. Xxxxx |
By: | /s/ Xxxxxx Xxxxxxxxxx | |||||
| Xxxxxx X. Xxxxx | Xxxxxx Xxxxxxxxxx, Chairman | |||||||
| Date: | 5/4/09 |
Date: | 5/12/09 | |||||
