Exhibit 10.2
GENERAL RELEASE
AGREEMENT
WHEREAS Steven L. Abate
(“Abate”) was employed by Charles & Colvard,
Ltd. (“Charles & Colvard”) until
February 5, 2009; and
WHEREAS, Charles and Colvard
contends Abate was terminated for “Just Cause” as
defined by Abate’s Employment Agreement with Charles and
Colvard dated December 5, 2007, and, therefore, contends Abate
is not entitled to any “Termination Compensation” as
defined by Abate’s Employment Agreement with Charles and
Colvard dated December 5, 2007; and
WHEREAS, Abate contends he was
terminated without cause and is entitled to “Termination
Compensation” as defined by Abate’s Employment
Agreement with Charles and Colvard dated December 5, 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 27th day of April 2009;
NOW, THEREFORE, the Parties agree as
follows:
1. Payment . For and in
consideration of the promises, releases, and agreements made herein
by Abate, Charles & Colvard agrees to pay Abate the gross
sum of Sixty Thousand Four Hundred Sixteen Dollars and Sixty-Eight
Cents ($60,416.68), allocated as follows:
a) Forty-Eight Thousand Three
Hundred Thirty-Three Dollars and Thirty-Four Cents ($48,333.34) to
be paid to Steven L. Abate, to be paid in two payments of
Twenty-Four Thousand One Hundred Sixty-Six Dollars and Sixty-Seven
Cents ($24,166.67). The first payment of Twenty-Four Thousand One
Hundred Sixty-Six Dollars and Sixty-Seven Cents ($24,166.67) will
be mailed to the last home address Charles & Colvard has
on record for Abate within 14 days of Charles &
Colvard’s receipt of this Agreement, which has been executed
by Abate, provided Abate does not revoke his signature as defined
in Paragraph 8 of this Agreement. The second payment of Twenty-Four
Thousand One Hundred Sixty-Six Dollars and Sixty-Seven Cents
($24,166.67) will be mailed to the last home address
Charles & Colvard has on record for Abate within 30 days
after the first payment of Twenty-Four Thousand One Hundred
Sixty-Six Dollars and Sixty-Seven Cents ($24,166.67). These
payments to Steven L. Abate 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 Abate.
b) Twelve Thousand Eighty-Three
Dollars and Thirty-Four Cents ($12,083.34) to be paid as
attorneys’ fees to the law firm of Glenn, Mills,
Fisher & Mahoney, P.A., to be paid in two payments of Six
Thousand Forty-One Dollars
and Sixty-Seven Cents ($6,041.67).
The first payment of Six Thousand Forty-One Dollars and Sixty-Seven
Cents ($6,041.67) will be mailed to Glenn, Mills, Fisher &
Mahoney, P.A. within 14 days of the Charles &
Colvard’s receipt of this Agreement, which has been executed
by Abate, provided Abate does not revoke his signature as defined
in Paragraph 8 of this Agreement. The second payment of Six
Thousand Forty-One Dollars and Sixty-Seven Cents ($6,041.67) will
be mailed to Glenn, Mills, Fisher & Mahoney, P.A. within
30 days of the first payment of Six Thousand Forty-One Dollars and
Sixty-Seven Cents ($6,041.67). 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 Abate.
c) In addition to the monetary
payments described in Paragraph 1(a) and Paragraph 1(b),
Charles & Colvard will not oppose Abate’s claim for
unemployment benefits.
Abate 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 payment, if any, shall
be the sole obligation of Abate. Abate 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. Release . For and in
consideration of the consideration of the payments made by
Charles & Colvard as described in Paragraph 1, the
sufficiency of which is hereby acknowledged, Abate 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 Abate 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.
Abate 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 Abate 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.
Abate 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 commo
