GENERAL RELEASE AGREEMENT
Exhibit 10.4
WHEREAS Xxxxxx Xxxx (“Xxxx”) was employed by Xxxxxxx & Xxxxxxx, Ltd. (“Xxxxxxx & Xxxxxxx”) until February 5, 2009; and
WHEREAS, Xxxxxxx and Xxxxxxx contends Xxxx was terminated for “Just Cause” as defined by Xxxx’x Employment Agreement with Xxxxxxx and Xxxxxxx dated 1 August 2004 and amended 28 August 2007; and, therefore, contends Xxxx is not entitled to any “Termination Compensation” as defined by Xxxx’x Employment Agreement with Xxxxxxx and Xxxxxxx dated 1 August 2004 and amended 28 August 2007; and
WHEREAS, Xxxx contends he was terminated without cause and is entitled to “Termination Compensation” as defined by Xxxx’x Employment Agreement with Xxxxxxx and Xxxxxxx dated August 1, 2004 and 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 18th day of June 2009;
NOW, THEREFORE, the Parties agree as follows:
1. Payment. For and in consideration of the promises, releases, and agreements made herein by Xxxx, Xxxxxxx & Xxxxxxx agrees to pay Xxxx the gross sum of Sixty-Five Thousand Dollars and Zero Cents ($65,000.00) to be paid in two payments of Thirty-Two Thousand Five Hundred Dollars and Zero Cents ($32,500.00). The first payment of Thirty-Two Thousand Five Hundred Dollars and Zero Cents ($32,500.00) will be mailed to the last home address Xxxxxxx & Xxxxxxx has on record for Xxxx within 14 days of Xxxxxxx & Xxxxxxx’x receipt of this Agreement, which has been executed by Xxxx, provided Xxxx does not revoke his signature as defined in Paragraph 8 of this Agreement. The second payment of Thirty-Two Thousand Five Hundred Dollars and Zero Cents ($32,500.00) will be mailed to the last home address Xxxxxxx & Xxxxxxx has on record for Xxxx within 30 days after the first payment of Thirty-Two Thousand Five Hundred Dollars and Zero Cents ($32,500.00). These payments to Xxxxxx Xxxx as defined in Paragraph 1 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 Xxxx.
2. Release by Xxxx. For and in consideration of the payments made by Xxxxxxx & Xxxxxxx as described in Paragraph 1, the sufficiency of which is hereby acknowledged, Xxxx 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 Xxxx 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, except that Xxxx does not waive or release any right he has to claim indemnification from Xxxxxxx & Xxxxxxx, Ltd pursuant to North Carolina corporate statutes or the Company’s bylaws, including but not limited to indemnification for the litigation pending in the Eastern District of North Carolina and captioned Xxxxxxx & Xxxxxxx, Ltd v. Jewelnet Corporation d/b/a K & G Creations et al, Case No. 5:08-cv-00274.
Xxxx 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 Xxxx 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.
Xxxx 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.
3. Release by Xxxxxxx & Xxxxxxx: For and in consideration of the release, confidentiality and non-disparagement agreements made by Xxxx as described in Paragraphs 2, 6 and 7, the sufficiency of which is hereby acknowledged, Xxxxxxx & Xxxxxxx irrevocably and unconditionally releases and forever discharges to the fullest extent permitted by law, Xxxxxx Xxxx, 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. The parties specifically agree that this release does not void or waive Xxxx’x continuing obligations as acknowledged in paragraph 13 of this Agreement. In addition, Xxxxxxx & Xxxxxxx will withdraw its appeal of Xxxx’x claim for unemployment benefits, and will not otherwise challenge that claim before the North Carolina Employment Security Commission.
4. No Assignment, and/or Claims, Charges, or Actions. Xxxx represents that he has no pending lawsuits, charges, or proceedings of any kind against Xxxxxxx & Xxxxxxx in any forum or before any agency. Xxxx 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. Xxxx further represents that he has the full right to enter into this Agreement.
5. Full Payment. Xxxx 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.
6. Confidentiality. Except as otherwise allowed in this paragraph, neither Xxxx, 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). Xxxx specifically and explicitly agrees that he has instructed and will continue to instruct Young Xxxxx and Xxxxxxxxx, 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, Xxxx may make disclosure of the monetary terms of this Agreement to: (a) legal counsel; (b) spouse; (c) personal tax or financial advisor; provided Xxxx 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. Xxxx 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 Xxxx shall not relieve Xxxx of his obligations as recited in this Agreement. If Xxxx breaches this confidentiality obligation, Xxxxxxx & Xxxxxxx shall have the right to file a lawsuit against Xxxx for such breach in the competent court of its choosing and Xxxx consents to personal jurisdiction of such court over him for these purposes. Xxxx 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.
7. Nondisparagement. Xxxx represents and agrees that he 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 not to, except to the extent required by law, disparage or defame Xxxx.
8. Additional Acknowledgements. Xxxx 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. |
9. 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.
10. 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.
11. 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.
12. No Reinstatement, Reapplication, or Rehire. To the full extent permitted by law, Xxxx 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. Xxxx 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. Xxxx waives and releases any claims and causes of action he might have otherwise because of such rejection. Xxxx further understands and agrees that if the Released Parties discover that they have inadvertently hired Xxxx, they have the right to terminate him immediately without cause. Xxxx waives any claims and causes of action he might have otherwise because of such termination.
13. Continuing Obligations. Xxxx 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.
14. 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 Xxxx and to the benefit of each of the Released Parties and their respective successors and assigns.
15. 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.
16. 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.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of North Carolina.
18. 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.
19. XXXXXX XXXX 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.
| AGREED AND UNDERSTOOD: | ||||||||
| Xxxxxx Xxxx | Xxxxxxx & Xxxxxxx, Ltd. | |||||||
| By: | /s/ Xxxxxx Xxxx |
By: | /s/ Xxxxxx Xxxxxxxxxx | |||||
| Xxxxxx Xxxx | Xxxxxx Xxxxxxxxxx, Chairman | |||||||
| Date: | 6/24/09 |
Date: | 6/30/09 | |||||
