RESIGNATION AGREEMENT AND GENERAL RELEASE
This
Resignation Agreement and General Release (the “Agreement” or the “Release”) is
entered into by and between The Saint Xxxxx Company, a North Carolina
corporation (the “Company”), and Xxxxx X. Xxxxxxxx (“Xx. Xxxxxxxx”) as of the
later of the dates on which the Company and Xx. Xxxxxxxx have executed this
Agreement.
I.
RECITALS
1.1 Xx.
Xxxxxxxx currently serves as the unpaid Chief Executive Officer and a director
of the Company and previously provided certain unpaid consulting services to
the
Company.
1.2 Xx.
Xxxxxxxx has determined that he will resign as the Chief Executive Officer
and a
director of the Company effective September 18, 2008, and terminate all other
relationships with the Company.
1.3 The
Company previously entered into letter agreement with Libertas Partners LLC,
pursuant to which it would act as financial advisor to the Company in connection
with a financing and act as lead underwriter in a proposed public offering
or
lead manager in a proposed private placement of a combination of equity and
debt
(the “Libertas Agreement”).
1.4 The
Company has been named as the designee of Samson Investment Company in respect
of a proposed acquisition or business combination transaction with Neqtar Wines
Pty Ltd (the “proposed Neqtar Transaction”).
1.5 In
connection with the Libertas Agreement and the proposed Neqtar Transaction,
the
Company has determined to focus its management and board of directors on
individuals with expertise in the wine industry.
1.6 The
Company and Xx. Xxxxxxxx are entering into this Agreement in connection with
Xx.
Xxxxxxxx’x resignations, the Company’s change of corporate focus and to provide
for the release of any claims related to Xx. Xxxxxxxx’x employment, service
with, with or resignation from the Company.
ACCORDINGLY,
in consideration of the resignations by Xx. Xxxxxxxx, the release by Xx.
Xxxxxxxx in favor of the Company and the payment by the Company in favor of
Xx.
Xxxxxxxx (all as set forth in more particularity hereinbelow), these premises,
and the other terms, conditions, and agreements herein, the Company and Xx.
Xxxxxxxx agree as follows:
II.
AGREEMENTS
2.1 Resignations.
Xx.
Xxxxxxxx’x service as the Company’s Chief Executive Officer and as a director
shall terminate on September 18, 2008 (the “Termination Date”).
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2.2 Payment.
The
Company shall tender to Xx. Xxxxxxxx a payment in the gross amount of $25,000;
$10,000 of said amount payable promptly after the Company receives the original
of this Agreement signed by Xx. Xxxxxxxx and the revocation period referred
to
in Paragraph 2.15(c) of this Agreement expires; $10,000 payable 32 days after
the Termination Date; the balance of $5,000 payable 64 days after the
Termination Date. As Xx. Xxxxxxxx has never been a compensated employee of
the
Company, this payment is not to be construed as employment compensation, bonus
compensation, or in any manner compensation to Xx. Xxxxxxxx in respect of his
actions as the Company’s chief executive officer or resignation therefrom. Any
and all taxes in respect of such payment shall be borne by Xx. Xxxxxxxx in
his
status as an independent contractor. Xx. Xxxxxxxx agrees to file the relevant
tax returns timely for the 2008 calendar year and to include such payment in
his
gross, reportable income. Further, Xx. Xxxxxxxx agrees to indemnify and fully
hold the Company harmless in respect of any tax issues that may arise to its
detriment in respect of such payment. Xx. Xxxxxxxx understands and agrees that
he would not receive the monies specified in this paragraph, except for his
execution of this Agreement and fulfillment of the promises contained
herein.
2.3 Release
of Claims.
Subject
only to paragraph 2.4, Xx. Xxxxxxxx, on his own behalf, and on behalf of Xx.
Xxxxxxxx’x successors and assigns, releases the Company and its officers,
directors, stockholders, owners, partners, employees, agents and attorneys
and
their respective successors and assigns (the “Released Parties”) from all
claims, demands, actions, grievances or other legal responsibilities of any
kind
that Xx. Xxxxxxxx may have based on, or pertaining to Xx. Xxxxxxxx’x employment
with or termination by the Company. This Release includes, but is not limited
to, any claims that Xx. Xxxxxxxx may have under the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act, as amended, which prohibits
discrimination in employment based on race, color, sex, religion or national
origin; the Americans with Disabilities Act; the Family and Medical Leave Act;
any claim for back pay, overtime, or any other wage-related issue; or any claims
for any other federal, state or local civil or human rights laws or regulations
affecting employment rights or prohibiting employment discrimination. This
Release also includes any claim for intentional or negligent infliction of
emotional distress, wrongful discharge, violation of any public policy, statute,
or common law obligation, breach of any implied or express contract between
the
Company and Xx. Xxxxxxxx, or any policy of the Company, or any remedy (including
any costs, fees, or other expenses) for any such claim or breach. Xx. Xxxxxxxx
understands that this Release covers claims Xx. Xxxxxxxx knows about and claims
about which he may have no or limited knowledge.
2.4 Claims
Not Affected by Release.
This
Agreement does not release rights that cannot be released by private agreement,
including but not limited to Xx. Xxxxxxxx’x right to file a charge with the
Equal Employment Opportunity Commission (the “EEOC”), the National Labor
Relations Board (the “NLRB”), or similar state or local agencies in connection
with any claim that Xx. Xxxxxxxx believes he may have against the Company.
However, by executing this Agreement, Xx. Xxxxxxxx hereby waives the right
to
recover in any proceeding he may bring before the EEOC, the NLRB or any agency
or in any proceeding brought by the EEOC, the NLRB or any agency on Xx.
Xxxxxxxx’x behalf. Finally, this Agreement does not waive any rights or claims
that Xx. Xxxxxxxx may have under the Age Discrimination in Employment Act which
arise after the date Xx. Xxxxxxxx signs this Agreement.
2.5 Agreement
not to Xxx/Warranty of Non-Assignment.
Xx.
Xxxxxxxx covenants never to file a lawsuit, charge, or grievance against the
Company or any of the Released Parties asserting any claims that are released
in
paragraph 2.3 above. Xx. Xxxxxxxx warrants that he has not assigned to any
other
person or entity any of the claims that are the subject of paragraph 2.3
above.
2.6 The
Company’s Property.
On or
before the Termination Date, Xx. Xxxxxxxx shall return to the Company all
physical property of any kind of the Company in his possession, including,
without limitation, directories, documents, lists of any kind, rolodexes, files,
and materials.
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2.7 Trade
Secrets and Confidential Information.
From
and after the Termination Date, Xx. Xxxxxxxx shall not divulge to any other
person, firm, corporation, or legal entity any “confidential information”
pertaining to the Company. “Confidential Information” means information or
materials related to the Company’s (or any affiliates) current or prospective
business and affairs that (a) derives economic value, actual or potential,
from
not being generally known to or readily ascertainable by other persons who
can
obtain economic value from the disclosure or use thereof and (b) is the subject
of efforts by the Company or its affiliates that are reasonable under the
circumstances to maintain the secrecy of the information. Confidential
Information includes, but is not limited to (1) financial and business
information, both historic and prospective, (2) specific business concepts,
including proposed business and financial structures and partner relationships
and business strategies, and (3) any and all other information related to the
business of the Company, both historic and prospective, whether technical or
non-technical.
2.8 No
Solicitation.
For a
period of twelve (12) calendar months following the Termination Date, Xx.
Xxxxxxxx shall not (a) directly or indirectly for his benefit or for the benefit
of any other person, firm, or corporation, divert, take away, solicit, or
attempt to divert, take away, or solicit any existing or prospective business
opportunity of the Company or (b) disrupt, damage, impair, or interfere with
the
current or prospective business of the Company in any manner.
2.9 Derogatory
Information.
Following the Termination Date, Xx. Xxxxxxxx shall not publish or disseminate
information derogatory to the Company or its prospective business, senior
executives, or directors, whether such information was acquired by Xx. Xxxxxxxx
prior or subsequent to the Termination Date.
2.10 Consequences
of Xx. Xxxxxxxx’x Breach of His Covenants.
Xx.
Xxxxxxxx will pay for all costs incurred by any of the Released Parties,
including reasonable attorneys’ fees, in defending against Xx. Xxxxxxxx’x claim
or in enforcing Xx. Xxxxxxxx’x covenants.
2.11 Severability.
Should
any part of this Agreement be declared invalid, void, or unenforceable, all
remaining parts shall remain in full force and effect and shall in no way be
invalidated or affected.
2.12 Future
Employment.
Xx.
Xxxxxxxx waives any rights to future employment with the Company.
2.13 No
Admission by Either Party.
The
parties mutually acknowledge that each is entering into this Agreement only
for
the reasons stated herein and, that by doing so, neither admits any liability
to
the other for any breach of any legal or contractual obligation to the
other.
2.14 Governing
Law.
This
Agreement and its enforceability shall be construed in accordance with the
laws
of the State of Arizona.
2.15 Xx.
Xxxxxxxx’x Rights to Seek Advice and to Review and Revoke this
Agreement.
a. Review
Period.
Xx.
Xxxxxxxx has been given a period of forty-five days to consider whether to
sign
this Agreement. Xx. Xxxxxxxx can use as much or little of this period as Xx.
Xxxxxxxx chooses. Xx. Xxxxxxxx has freely elected to execute this Agreement
on
the date set forth below.
b. Attorney
Advice.
Xx.
Xxxxxxxx has been advised of the opportunity to consult with an attorney before
execution of this Agreement.
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c. Revocation
Period.
This
Agreement may be revoked for a period of seven days after Xx. Xxxxxxxx signs
it.
Revocation must be made by delivery of written notice of revocation to The
Saint
Xxxxx Company, c/o Xxxxxxx X. Xxxx, 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxx 00000. For the revocation to be effective, written notice must be
received no later than the close of business on the seventh calendar day after
Xx. Xxxxxxxx signs this Agreement. If Xx. Xxxxxxxx revokes this Agreement,
it
shall not be effective in any respect and the Company shall have no obligation
to provide any of the payments described in this Agreement. If Xx. Xxxxxxxx
does
not revoke this Agreement in accordance with this subparagraph c, it shall
be
enforceable and irrevocable except by mutual agreement of the parties hereto,
executed in writing.
2.17 Entire
Agreement/Modifications.
All of
the terms, provisions and conditions agreed on by the parties hereto with
respect to the subject matter hereof are expressed in the Agreement, and, except
as contained in the Agreement, there are no other future understandings between
the parties, and all previous Agreements or understandings are of no further
force or effect. No promise by any employee, officer, partner, attorney, or
agent of any party that is not expressly contained in the Agreement shall be
binding or valid on that party. Any modifications, alterations or amendments
to
the Agreement shall be void and of no force or effect unless in writing and
signed by all parties hereto.
XX.
XXXXXXXX ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
IS
VOLUNTARILY ENTERING INTO IT WITH THE INTENTION OF RELINQUISHING ALL CLAIMS
AND
RIGHTS OTHER THAN THOSE SET FORTH HEREIN.
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THE
SAINT XXXXX COMPANY
By:
/s/
Xxxxx
Xxxxxxxxx
Xxxxx
Xxxxxxxxx
Director
and authorized signatory
Dated:
September 18, 2008
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/s/
Xxxxx X.
Xxxxxxxx
XXXXX
X. XXXXXXXX
Dated:
September 18, 2008
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