Exhibit 10.131
MUTUAL TERMINATION AND RELEASE
AGREEMENT
MUTUAL TERMINATION AND RELEASE
AGREEMENT (this “ Agreement ) is made and entered into
this 2 nd
day of July, 2009, by and among
Charles & Colvard, Ltd., a North Carolina corporation
(“ C&C ”), Bird Capital Group, Inc., a
Nevada corporation (“ BCG ”), and Richard A.
Bird, an individual resident of the State of Texas (“
Bird ”).
RECITALS:
A. C&C, BCG and Bird are parties
to that certain Management Services Agreement dated
February 3, 2009 (the “ Prior Agreement
”).
B. C&C, BCG and Bird by mutual
agreement now desire to terminate the Prior Agreement.
C. Capitalized terms used in this
Agreement but not otherwise defined herein shall have the meanings
ascribed to such terms in the Prior Agreement.
NOW, THEREFORE, in consideration of
the terms and conditions herein provided, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged by the parties, the parties hereto agree as
follows:
1. Termination . C&C, BCG
and Bird mutually agree that the Prior Agreement shall terminate
and be of no further force or effect as of the close of business on
July 2, 2009 (the “ Effective Time ”), and
that, from and after the Effective Time, neither C&C, BCG nor
Bird shall have any further rights, duties or obligations under the
Prior Agreement, including without limitation any obligations on
the part of C&C to make payments related to the potential
short- and long-term bonuses described in Sections 3 and 4 of the
Prior Agreement. Bird hereby resigns as both a director and an
officer of C&C, such resignations to be effective as of the
Effective Time. C&C hereby accepts such resignations as of the
Effective Time.
2. Indemnification and D&O
Insurance . C&C acknowledges and agrees that the
Indemnification Agreement effective as of May 27, 2008, by and
between C&C and Bird shall continue in force and effect in
accordance with its terms. In addition, C&C agrees to indemnify
and hold harmless BCG and Bird from and against any and all losses,
claims, suits, actions, judgments, damages, costs, liabilities, and
reasonable expenses (including legal and other expenses reasonably
incurred by BCG or Bird in connection with investigating or
defending against any such loss, claim, damage, or liability) (each
a “ Loss ”) as and when incurred (including,
without limitation, the advancement of expenses incurred by BCG or
Bird in connection with defending any Loss upon receipt of an
undertaking by or on behalf of BCG or Bird to repay such amount
unless it shall be ultimately determined that it or he is entitled
to be indemnified by C&C against such expenses) arising out of
or based upon (a) the Prior Agreement, and/or
(b) BCG’s and/or Bird’s activities or services
under the Prior Agreement. C&C shall not be liable, however, in
any such case to the extent that any such Loss is found in a final
judgment by a court of competent jurisdiction to have resulted
primarily from bad faith, willful misconduct or gross negligence on
the part of BCG or any affiliate of BCG or to the
1
extent such Losses relate to BCG’s,
Bird’s or their affiliate’s activities which were at
the time taken known or believed by BCG, Bird or their affiliates
to be clearly in conflict with the best interests of C&C.
Furthermore, C&C shall (i) from and after the Effective
Time maintain coverage of Bird under C&C’s directors and
officers liability insurance policies in existence from time to
time so that Bird will continue to have coverage for any claims
relating to periods during which Bird served as an officer and /or
director of C&C, and (ii) fully cooperate with BCG or
Bird, should BCG or Bird desire to obtain one or more fully paid
directors and officers “tail” liability insurance
policies, that shall cover Bird (as a former director and officer
of C&C and for the periods during which Bird was a director
and/or officer of C&C).
3. Mutual Release . C&C,
on behalf of itself and on behalf of each of its agents,
professionals, assigns, affiliates (corporate or otherwise), and
successors, and any other person who may assert a claim through or
on behalf of any of them, hereby irrevocably and unconditionally
releases, acquits and forever discharges BCG, Bird and each of
their respective shareholders, officers, directors, employees,
agents, professionals, subsidiaries, predecessors, affiliates,
successors and assigns, from any and all Released Claims,
including, without limitation, all Released Claims arising out of,
based upon, resulting from or relating to (a) the Prior
Agreement or any of the transactions contemplated thereby, and/or
(b) BCG’s and/or Bird’s activities or services
under the Prior Agreement. Each of BCG and Bird, on behalf of
themselves and on behalf of each of their agents, professionals,
assigns, affiliates (corporate or otherwise), and successors, and
any other person who may assert a claim through or on behalf of any
of them, hereby irrevocably and unconditionally releases, acquits
and forever discharges C&C and each of its shareholders,
officers, directors, employees, agents, professionals,
subsidiaries, predecessors, affiliates, successors and assigns,
from any and all Released Claims, including, without limitation,
all Released Claims arising out of, based upon, resulting from or
relating to the Prior Agreement or any of the transactions
contemplated thereby. “ Released Claims ” as
used herein shall mean any and all rights, charges, complaints,
claims, causes of action, promises, agreements, rights to payment,
rights to any equitable remedy, rights to any equitable
subordination, rights to any financial, economic or equity
interest, breaches of contract, breaches of duty or of any
relationship, acts, omissions, misfeasance, malfeasance, demands,
indebtedness, liabilities, obligations, express or implied
contracts, controversies, obligations of payment or performance,
rights of offset or recoupment, accounts, sums of money,
compensation, remuneration, damages, costs, losses or expenses
(including attorneys’ and other professional fees and
expenses) of every type, kind, nature, description or character,
and irrespective of how, why or by reason of what facts, whether
heretofore or now existing or disclosed or undisclosed, or that
could, might or may be claimed to exist, of whatever kind or name,
whether known or unknown, suspected or unsuspected, liquidated or
unliquidated, claimed or unclaimed, absolute or contingent, direct
or derivative, whether based on contract, tort, breach of any duty,
or other legal or equitable theory of recovery, each as though
fully set forth herein at length (collectively, “
Claims ”), that arose, or whose underlying events
occurred, prior to the date of this Agreement, whether asserted
prior to the date of this Agreement or thereafter, specifically
including, but without limitation, Claims arising from or out of,
connected with, or relating to the Prior Agreement and/or the
transactions contemplated thereby. Notwithstanding the foregoing,
“ Released Claims ” do not include any actual or
potential Claims held by any party hereto (or any rights or duties
related to such Claims) which arise from or out of this Agreement,
which Claims are expressly reserved. The parties hereto expressly
understand that both direct and indirect breaches of this
Section 3 are proscribed, and, therefore, each party hereto
covenants that it will not directly or indirectly encourage or
aid,
