Exhibit 10.3
GENERAL RELEASE
AGREEMENT
WHEREAS Carl Mielke
(“Mielke”) was employed by Charles & Colvard,
Ltd. (“Charles & Colvard”) until
February 5, 2009; and
WHEREAS, Charles & Colvard
contends Mielke was terminated for “Just Cause” as
defined by Mielke’s Employment Agreement with
Charles & Colvard dated March 19, 2007 as amended
August 28, 2007, and, therefore, contends Mielke is not
entitled to any “Termination Compensation” as defined
by Mielke’s Employment Agreement with Charles &
Colvard dated March 19, 2007 as amended August 28, 2007;
and
WHEREAS, Mielke contends he was
terminated without cause and is entitled to “Termination
Compensation” as defined by Mielke’s Employment
Agreement with Charles & Colvard dated March 19, 2007
as 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 13th day of May 2009;
NOW, THEREFORE, the Parties agree as
follows:
1. Payment . For and in
consideration of the promises, releases, and agreements made herein
by Mielke, Charles & Colvard agrees to pay Mielke the
gross sum of One Hundred Forty Thousand Dollars ($140,000.00),
allocated as follows:
a) One Hundred Twenty-Five Thousand
Dollars ($125,000.00) to be paid to Carl Mielke, to be paid in two
payments of Sixty-Two Thousand Five Hundred Dollars ($62,500.00).
The first payment of Sixty-Two Thousand Five Hundred Dollars
($62,500.00) will be mailed to the last home address
Charles & Colvard has on record for Mielke within 14 days
of Charles & Colvard’s receipt of this Agreement,
which has been executed by Mielke, provided Mielke does not revoke
his signature as defined in Paragraph 8 of this Agreement. The
second payment of Sixty-Two Thousand Five Hundred Dollars
($62,500.00) will be mailed to the last home address
Charles & Colvard has on record for Mielke within 30 days
after the first payment of Sixty-Two Thousand Five Hundred Dollars
($62,500.00). These payments to Carl Mielke 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 Mielke.
b) Fifteen Thousand Dollars
($15,000.00) to be paid as attorneys’ fees to the law firm of
Smith Moore Leatherwood LLP, to be paid in two payments of Seven
Thousand Five Hundred Dollars ($7,500.00). The first payment of
Seven Thousand Five Hundred Dollars ($7,500.00) will be mailed to
Smith Moore Leatherwood LLP within 14 days of the
Charles & Colvard’s receipt of this Agreement, which
has been executed by Mielke, provided Mielke does not
revoke
his signature as defined in
Paragraph 8 of this Agreement. The second payment of Seven Thousand
Five Hundred Dollars ($7,500.00) will be mailed to Smith Moore
Leatherwood LLP within 30 days of the first payment of Seven
Thousand Five Hundred Dollars ($7,500.00). 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 Mielke and Smith
Moore Leatherwood LLP.
Mielke 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 payments, if any, shall
be the sole obligation of Mielke. Mielke agrees to indemnify,
defend, and hold Charles & Colvard 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. In addition to the monetary
payments described in Paragraph 1(a) and Paragraph 1(b),
Charles & Colvard will withdraw its appeal of
Mielke’s claim for unemployment benefits, and will not
otherwise challenge that claim before the North Carolina Employment
Security Commission.
3. Release by Mielke . For
and in consideration of the payments made by Charles &
Colvard as described in Paragraph 1, the sufficiency of which is
hereby acknowledged, Mielke 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 Mielke 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.
Mielke 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 Mielke 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.
Mielke acknowledges that he has
received all monies due to him from any one or all of the Released
Parties except for the payments provided in Paragraph 1 of this
Agreement, 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.
Notwithstanding the foregoing, this
Agreement does not apply to any claims or rights that arise after
the date of this Agreement, including such claims that may arise
under the Age Discrimination in Employment Act or under any other
applicable law, including a claim for breach of this Agreement,
after the date that this Agreement is signed.
4. Release by Charles &
Colvard : For and in consideration of the release,
confidentiality and non-disparagement agreements made by Mielke as
described in Paragraphs 1, 7 and 8, the sufficiency of which is
hereby acknowledged, Charles & Colvard irrevocably and
unconditionally releases and forever discharges to the
fullest
