EXHIBIT 10.6
AGREEMENT OF SEPARATION, WAIVER AND
RELEASE AND NON-SOLICITATION
FOR AND IN CONSIDERATION of the mutual promises of the parties to this
Agreement of Separation, Waiver and Release and Non-Solicitation (the
"Agreement"), the receipt and sufficiency of which are hereby acknowledged, Xx.
Xxxx X. Xxxxxxx (hereinafter referred to as "Employee") and HomeGold Financial,
Inc. (hereinafter referred to as to the "Company," and where applicable,
including any and all of its corporate affiliates,) agree as follows:
1. The parties agree that Employee's employment with the Company will terminate
effective September 1, 2000 (the "Effective Date"). Subject to the performance
by Employee of the terms and provisions of this Agreement, the Company hereby
agrees to continue to pay Employee his biweekly salary through the close of
business on September 1, 2000, less all legally required or authorized
deductions.
2. In addition to the compensation provided, the Company agrees to pay Employee
on or before ______________, 2000, the sum of Ten Thousand ($10,000) Dollars for
Employee's moving expenses.
3. In consideration of the promises made by the Company herein, which Employee
acknowledges to exceed anything that the Company had a pre-existing obligation
to provide, Employee does hereby for himself and his heirs, estate, personal
representatives, successors, and assigns, fully release and discharge the
Company and each of its respective agents, employees, representatives,
attorneys, directors, officers, stockholders, affiliated corporations, parent or
subsidiary corporations, predecessors, successors and assigns, and the
successors and assigns of any of the foregoing (the "Released Parties"), of and
from any and all grievances, charges, employment contracts, agreements, suits,
liabilities, legal actions or claims of any nature whatsoever, whether known or
unknown, arising from or related to his employment with or separation from the
Company or the Company's employment policies, practices, and benefits, including
claims arising under federal, state, or local statute, ordinance, common law,
regulation, equity or other source including, but not limited to, any and all
claims of age, disability, race, color, sex, national origin, ancestry,
religion, or other discrimination or harassment, any claims arising under Title
VII of the Civil Rights Acts of 1964, 42 U.S.C. ss. 2000e, et seq.; the Civil
Rights Act of 1866, 1871, and 1964, as amended; the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. xx.xx. 1001 et seq.; Section 1981 of Title 42 of
the U.S. Code; the Americans with Disabilities Act, 29 U.S.C. xx.xx. 12101 et
seq.; the Age Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq.; and
the Family and Medical Act, 29 U.S.C. xx.xx. 2601 et seq.; claims arising under
the laws of South Carolina or any other state, and claims asserting breach of
contract (whether express or implied), promissory estoppel, wrongful
termination, defamation, invasion of privacy, injury to credit, outrage,
distress, humiliation, loss of standing and prestige, personal injury, loss of
consortium, tort, or other common law causes of action, or claims for workers'
compensation or other compensation for bodily injury. Employee waives only those
rights or claims that arose from events occurring before the date this Agreement
is executed. The released claims include, but are not limited to, any claims for
back pay, front pay, damages, court costs, attorneys' fees, punitive damages,
reinstatement or any other monetary or equitable relief. Employee shall waive
any right to, and will not accept, any other remedy obtained through the efforts
of any other individual or agency, state or federal, relating to his employment.
Employee's return of the above-recited consideration does not entitle him to
institute action against the Company. If Employee sues Company in violation of
this paragraph, Employee agrees to pay all costs and expenses incurred by the
Company in defending the suit, including reasonable attorneys' fees.
4. Company does hereby for itself, its representatives, successors, and assigns,
fully release and discharge Employee of and from any and all grievances,
charges, employment contracts, agreements, suits, liabilities, legal actions or
claims of any nature whatsoever, arising from or related to Employee's
employment with or separation from the Company, including claims arising under
federal, state, or local statute, ordinance, common law, regulation, equity or
other source. Company waives only those rights or claims that arose from events
occurring before the Execution Date. If Company sues Employee in violation of
this paragraph, Company agrees to pay all costs and expenses incurred by the
Employee in defending the suit, including reasonable attorneys' fees.
5. Employee acknowledges and agrees that this Agreement supercedes and replaces
all previous agreements and that neither the Company nor any of the Released
Parties owes him any wages, benefits, accrued vacation or sick leave, salary, or
other compensation in any amount whatsoever other than as expressly agreed to
herein. Employee agrees that to the extent that he is otherwise due any such
amounts or compensation or expenses of any nature, the Company's obligation to
pay these amounts is satisfied and subsumed in full by the compensation set
forth above.
6. Employee agrees not to disparage the Company in any way to any person,
including but not limited to any customer or potential customer of the Company.
Employee also agrees not to make disparaging comments about the Company, its
owners, any of its employees, services, products, or policies to any other
person (including, without limitation, present or future customers, suppliers or
employees of the Company). In addition, Employee agrees to keep confidential,
and not disclose to any person, all Confidential Information learned by him
while in a relationship with the Company. For purposes of this agreement,
Confidential Information includes all information (whether in written form, on
electronic media, or oral) about the Company, its finances, prospects,
operations, customer lists, price lists, product lists, plans, marketing
strategy or trade secrets as defined by the South Carolina Trade Secrets Act.
7. Company agrees not to disparage Employee or his employment with the Company
to any third party. Employee is to direct all employment references to the
Vice-President of Finance or CFO of the Company in writing, who agrees only to
provide
the following information: dates of employment, position(s) held, and
confirmation of the last compensation package (i.e., base salary, bonus,
benefits). Employee authorizes the Vice President of Finance or CFO of the
Company to inform inquirers that Employee left the Company to pursue other
business opportunities.
8. In exchange for the consideration cited above, Employee covenants and
agrees:
a. For a period of 12 months after the Effective Date, he will
not, for himself or on behalf of any Third Party, directly or
indirectly:
i) consult, attempt to hire, or encourage any present employee
of the Company to end his/her employment with the Company to
accept employment with any Third Party that competes, directly
or indirectly, with the Company; or
ii) consult, attempt to hire, or encourage any former employee
of the Company who has been away from the Company for less
than one month to accept employment with any Third Party that
competes, directly or indirectly, with the Company.
b. The parties hereto recognize that irreparable damage will
result to the Company in the event of the breach of any of the
covenants contained in this paragraph. The parties therefore
agree that the Company shall be entitled, in addition to any
other remedies or damages available to it under the South
Carolina Trade Secrets Act or other statutory or common law,
to obtain injunctive relief without bond in order to restrain
the violation of such covenants by Employee.
9. This Agreement does not constitute an admission of any wrongdoing by the
Company but is a release by Employee of all existing potential claims, whether
known or unknown, entered solely for the purpose of resolving any disputes that
might exist between the parties.
10. To comply with the Older Workers Benefits Protection Act of 1990, the
Company has advised Employee of the legal requirements of this Act and this
Agreement fully incorporates those legal requirements by reference and as
follows:
a. This Agreement is written in xxxxxx'x terms, and Employee
hereby represents to the Company that he understands and
comprehends its terms;
b. Employee is hereby advised to, and has had an opportunity to
consult with an attorney to review the Agreement prior to
executing it;
c. The Agreement specifically refers to rights and claims arising
under the Age Discrimination in Employment Act;
d. Employee does not waive any rights or claims that result from
events occurring after the date the Agreement is executed;
e. Employee hereby acknowledges that he is receiving
consideration beyond anything of value to which he already is
entitled;
f. Employee has twenty-one days from his receipt hereof to
consider this proposed Agreement. Employee's failure to accept
the proposed Agreement by close of business on the
twenty-first day following his receipt of the Agreement may be
deemed rejection of its terms;
g. Employee has the right to revoke the Agreement for seven days
following his signing of the Agreement, and after the
expiration of that seven days the executed Agreement shall be
of full validity, force, and effect.
11. This Agreement contains the entire agreement of the parties relating to the
subject matter hereof, and the parties have made no agreements, representations,
or warranties relating to the subject matter of this Agreement that are not set
forth herein. No amendment or modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto. No term or condition of
this Agreement shall be deemed to have been waived except by written instrument
signed by the waiving party.
12. Employee hereby represents and warrants that he has not assigned,
transferred, or conveyed to any individual or entity any alleged right, claim or
cause of action of any kind which is included within the above releases.
Employee further represents and warrants that he is aware of no lien or other
encumbrance of his rights, claims, and causes of action, and that he is entitled
to receive from the Company payment of the full amount of the proceeds due to
him under this Agreement.
13. This Agreement was made in, and shall be governed by and enforced under the
laws of, the State of South Carolina, without regard to choice of law
principles. This Agreement may be enforced only in a court of competent
jurisdiction in Greenville County, South Carolina and Employee agrees to submit
to jurisdiction in Greenville County, South Carolina whether or not he is then
residing in South Carolina. In the event of litigation of any dispute regarding
or related to this Agreement, the prevailing party at such litigation shall be
liable to the other for all costs and expenses, including, without limitation,
reasonable attorney fees and expert witness fees.
Executed and agreed to on ________________________, 2000 (the
"Execution Date").
READ CAREFULLY. THIS RELEASE ENDS YOUR CLAIMS AGAINST THE COMPANY
WITNESSES: HOMEGOLD FINANCIAL, INC.
_______________________ By:____________________________
Its:___________________________
EMPLOYEE
_______________________ _______________________________
XXXX X. XXXXXXX
