Exhibit 10.4
GENERAL RELEASE
AGREEMENT
WHEREAS Dennis Reed
(“Reed”) was employed by Charles & Colvard,
Ltd. (“Charles & Colvard”) until
February 5, 2009; and
WHEREAS, Charles and Colvard
contends Reed was terminated for “Just Cause” as
defined by Reed’s Employment Agreement with Charles and
Colvard dated 1 August 2004 and amended 28 August 2007;
and, therefore, contends Reed is not entitled to any
“Termination Compensation” as defined by Reed’s
Employment Agreement with Charles and Colvard dated 1 August
2004 and amended 28 August 2007; and
WHEREAS, Reed contends he was
terminated without cause and is entitled to “Termination
Compensation” as defined by Reed’s Employment Agreement
with Charles and Colvard 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 Reed, Charles & Colvard agrees to pay Reed 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 Charles & Colvard has on
record for Reed within 14 days of Charles &
Colvard’s receipt of this Agreement, which has been executed
by Reed, provided Reed 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 Charles & Colvard has on
record for Reed within 30 days after the first payment of
Thirty-Two Thousand Five Hundred Dollars and Zero Cents
($32,500.00). These payments to Dennis Reed 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 Reed.
2. Release by Reed . For and
in consideration of the payments made by Charles & Colvard
as described in Paragraph 1, the sufficiency of which is hereby
acknowledged, Reed 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, Charles & Colvard; Charles &
Colvard (HK), Ltd.; Guangzhou Charles & Colvard Trading
Limited; Bird Capital Group, Inc.; and each of their present and
former shareholders, officers, directors (specifically including,
but not limited to, Richard A.
Bird) employees, representatives, agents,
predecessors, successors, affiliates, subsidiaries, assigns, any
employee benefit plans sponsored or administered by
Charles & Colvard, 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 Reed 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 Reed
does not waive or release any right he has to claim indemnification
from Charles & Colvard, 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
Charles & Colvard, Ltd v. Jewelnet Corporation d/b/a K
& G Creations et al , Case
No. 5:08-cv-00274.
Reed 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 Reed 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.
Reed 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 Charles &
Colvard : For and in consideration of the release,
confidentiality and non-disparagement agreements made by Reed as
described in Paragraphs 2, 6 and 7, the sufficiency of which is
hereby acknowledged, Charles & Colvard irrevocably and
unconditionally releases and forever discharges to the fullest
extent permitted by law, Dennis Reed, 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 Reed’s continuing obligations
as acknowledged in paragraph 13 of this Agreement. In addition,
Charles & Colvard will withdraw its appeal of Reed’s
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 . Reed represents that he has no pending
laws
