EXHIBIT 10.1
EMPLOYMENT SEPARATION AGREEMENT
E-Rail Logistics, Inc. ("E-Rail"), a wholly-owned subsidiary of Chartwell
International, Inc. ("Chartwell") ("E-Rail" and "Chartwell," collectively
referred to herein as the "Company") and Xxxxxxxxxxx Xxxxxx (the "Employee"),
agree as follows, as of the 1st day of December, 2005:
1. Employment. The Employee's employment as President of E-Rail and as an
employee of the Company was terminated, effective the end of the workday,
December 1, 2005 ("Termination Date"). The Employee is required to complete the
Company's exit interview on the Termination Date. The Company and the Employee
agree to sever their employment relationship and terminate the Employment
Agreement by and between E-Rail and the Employee dated as of September 8, 2005
(the "Employment Agreement") pursuant to the terms and conditions set forth in
this Employment Separation Agreement ("Agreement").
2. Position; Scope of Employment. The Employee shall cease functioning in the
position of President for E-Rail and shall cease to be an employee for E-Rail in
any capacity, effective on the Termination Date.
3. Stock and Legal Invoices. As part consideration for the termination of the
Employment Agreement, the Company agrees that common stock of Chartwell issued
directly or indirectly to the Employee pursuant to the Agreement and Plan of
Merger through which E-Rail was acquired by Chartwell dated as of September 8,
2005, and conditioned upon Employee entering into, and not breaching the terms
and conditions of the Employment Agreement ("Merger Stock"), shall be held by
the Employee free and clear of any right, title or interest that the Company may
possess.
4. Release of Liability. The Employee acknowledges that he enters this
Agreement freely and voluntarily, and agrees as follows:
4.1. ADEA Waiver. The Employee acknowledges that he is knowingly and
voluntarily waiving and releasing any rights the Employee may have under the Age
Discrimination in Employment Act of 1967, as amended ("ADEA"). The Employee also
acknowledges that the consideration given for the waiver and release pursuant to
this Agreement is in addition to anything of value to which the Employee was
already entitled.
4.2. Mutual General Release. The Employee hereby irrevocably and
unconditionally releases and forever discharges the Company and all of its
officers, agents, directors, supervisors, employees, representatives and their
successors and assigns and all persons acting by, through, under or in concert
with any of them from any and all charges, complaints, grievances, claims,
actions, and liabilities of any kind (including attorneys' fees, interest,
expenses and costs actually incurred) of any nature whatsoever, known or
unknown, suspected or unsuspected (hereinafter referred to as "Claims"), which
the Employee has or may have in the future, arising out of the Employee's
employment with the Company or the Employment Agreement. All such Claims are
forever barred by this Agreement and without regard to whether these Claims are
based on any alleged breach of duty arising in contract or tort, any alleged
employment discrimination or other unlawful discriminatory act, or any claim or
cause of action regardless of the forum in which it may be brought, including
without limitation, claims under the National Labor Relations Act, Title VII of
the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1964, as amended, the Americans With
Disability Act, the Federal Family and Medical Leave Act of 1993, the Vietnam
Era Veterans Readjustment Assistance Act of 1974, any allegation of wrongful
termination and any claim arising under the laws of the states of New York, New
Jersey, Nevada or West Virginia.
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The Company hereby irrevocably and unconditionally releases and forever
discharges the Employee from any and all charges, complaints, grievances,
claims, actions, and liabilities of any kind (including attorneys' fees,
interest, expenses and costs actually incurred) of any nature whatsoever, known
or unknown, suspected or unsuspected, which the Company has or may have in the
future, arising out of the Employee's employment with the Company or the
Employment Agreement.
5. Payment of Salary. Vacation and sick leave ceased accruing on the
Termination Date. The Employee acknowledges and represents that with the payment
of November 2005 salary, the Company has paid all salary, wages, bonuses,
accrued vacation, commissions and any and all other benefits due to Employee.
6. Business Expenses. Within five (5) business days of the Termination Date,
Employee will submit his final documented expense reimbursement statement
reflecting all business expenses incurred from September 8, 2005 through the
Termination Date for which he seeks reimbursement. The Company will reimburse
the Employee pursuant to its regular business practice. The Employee has been
reimbursed for all business expenses, in accordance with the Company's
reimbursement policy.
7. Confidential Information. The Employee acknowledges that during the course
of his duties with the Company, he handled confidential information of the
Company and its affiliates. The Employee agrees he will retain in the strictest
confidence all confidential matters which relate to the Company or its
affiliates, including, without limitation, pricing lists, business plans,
financial projections and reports, business strategies, internal operating
procedures and other confidential business information from which the Company
derives an economic or competitive advantage or from which the Company might
derive such advantage in its business, whether or not labeled "secret" or
"confidential," and not to disclose directly or indirectly or use by him in any
way, at any time, except as permitted by law.
8. Trade Secrets. The Employee shall not disclose to any others or take or use
for the Employee's own purposes or purposes of any others at any time, any of
the Company's trade secrets, including without limitation, confidential
information; customer lists; information concerning current or any future and
proposed work, services or products; the fact that any such work, services or
products are planned, under consideration, or in production, as well as any
description thereof. The Employee agrees that these restrictions shall also
apply to (i) trade secrets belonging to third parties in the Company's
possession and (ii) trade secrets conceived, originated, discovered or developed
by the Employee during the term of his employment.
9. Inventions; Ownership Rights. The Employee agrees that all ideas,
techniques, inventions, systems, formulas, discoveries, technical information,
programs, prototypes and similar developments ("Developments") developed,
created, discovered, made, written or obtained by him in the course of or as a
result, directly or indirectly, of performance of his duties to the Company, and
all related industrial property, copyrights, patent rights, trade secrets and
other forms of protection thereof, shall be and remain the property of the
Company. The Employee agrees to execute or cause to be executed such assignments
and applications, registrations and other documents and to take such other
action as may be requested by the Company to enable the Company to protect its
rights to any such Developments.
10. No Disparagement . The parties agree to treat each other respectfully and
professionally and not disparage the other party, and the other party's
officers, directors, employees, shareholders and agents, in any manner likely to
be harmful to them or their business, business reputation or personal
reputation; provided that both the Employee and the Company will respond
accurately and fully to any question, inquiry or request for information when
required by the legal process.
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11. Non-Interference; No Solicitation. The Employee agrees not to interfere
with any of the Company's contractual obligations with others. Furthermore, the
Employee agrees during a period of two years after the date of this Agreement,
not to, without the Company's express written consent, on his or her behalf or
on behalf of another: (i) contact or solicit the business of any client,
customer, creditor or licensee of the Company, (ii) hire employees of the
Company, other than clerical employees, (iii) solicit the business of any
client, customer or licensee of the Company. The Employee acknowledges that this
section 11 is a reasonable and necessary measure deigned to protect the
proprietary information of the Company.
12. Return Company Property. The Employee represents and warrants that he has
returned to the Company all the Company's or its affiliates' memoranda, notes,
records, reports, manuals, drawings, designs, computer files in any media and
other documents (including extracts and copies thereof) relating to the Company
or its affiliates, and all other property of the Company.
13. Actions Contrary to Law; Conflict. Nothing contained in this Agreement
shall be construed to require the commission of any act contrary to law, and
whenever there is any conflict between any provision of this Agreement and any
statute, law, ordinance, or regulation, contrary to which the parties have no
legal right to contract, then the latter shall prevail; but in such event, the
provisions of this Agreement so affected shall be curtailed and limited only to
the extent necessary to bring it within legal requirements. If any provisions
herein conflict with the terms and conditions in the Employment Agreement, the
terms and conditions stated in this Agreement shall control.
14. Miscellaneous.
14.1. Notices. All notices to be given by either party to the other shall
be in writing and may be transmitted by personal delivery, facsimile
transmission, overnight courier or mail, registered or certified, postage
prepaid with return receipt requested; provided, however, that notices of change
of address or facsimile number shall be effective only upon actual receipt by
the other party. Notices shall be delivered at the following addresses, unless
changed as provided for herein:
To the Employee: Xxxxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
To the Company: Chartwell International, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: President
14.2. Entire Agreement. This Agreement supersedes any all agreements,
either oral or written, between the parties hereto with respect to its subject
matter. Each party to this Agreement acknowledges that no representation,
inducements, promises, or agreements, orally or otherwise, have been made by any
party or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
Agreement shall be valid or binding. Any modification of this Agreement will be
effective only if it is in writing and signed by both parties.
14.3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of West Virginia.
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14.4. Jurisdiction and Venue. The parties hereby consent to the exclusive
jurisdiction of the state and federal courts sitting in the State of West
Virginia in the venue of Kanawha County in any action on a claim arising out of,
under or in connection with this Agreement or the transactions contemplated by
this Agreement, provided such claim is not required to be arbitrated pursuant to
Section 14.5. The parties further agree that personal jurisdiction over them may
be effected by notice as provided in Section 14.1, and that when so made shall
be as if served upon them personally within the State of West Virginia.
14.5 Arbitration. Any controversy, dispute or claim arising out of or
relating to this Agreement, performance hereunder or breach thereof, which
cannot be amicably settled, shall be settled by arbitration conducted in Kanawha
County, West Virginia or such other mutually agreed upon location. Said
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association at a time and place within the
above-referenced location as selected by the arbitrator(s) as further described
in the Employment Agreement.
14.6. Attorneys' Fees. In the event of any litigation, arbitration, or
other proceeding arising out of this Agreement, or the parties' performance as
outlined herein, the prevailing party shall be entitled to an award of costs,
including an award of reasonable attorneys' fees. Any judgment, order, or award
entered in any such proceeding shall designate a specific sum as such an award
of attorneys' fees and costs incurred. This attorneys' fee provision is intended
to be severable from the other provisions of this Agreement, shall survive any
judgment or order entered in any proceeding and shall not be deemed merged into
any such judgment or order, so that such further fees and costs as may be
incurred in the enforcement of an award or judgment or in defending it on appeal
shall likewise be recoverable by further order of a court or panel or in a
separate action as may be appropriate.
14.7. Amendment, Waiver. No amendment or variation of the terms of this
Agreement shall be valid unless made in writing and signed by the Employee and
the Company. A waiver of any term or condition of this Agreement shall not be
construed as a general waiver by the Company. Failure of either the Employee or
the Company to enforce any provision or provisions of this Agreement shall not
waive any enforcement of any continuing breach of the same provision or
provisions or any breach of any provision or provisions of this Agreement.
14.8. Ambiguities. This Agreement shall not be subject to the rule that any
ambiguities in the contract are to be interpreted against the drafter of the
Agreement.
14.9. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed original, but all of which
shall constitute one and the same instrument or by way of facsimile in its
entirety. An executed facsimile signature shall be deemed an original.
14.10. Representation. The parties to this Agreement, and each of them,
acknowledge, agree, and represent that it: (a) has directly participated in the
negotiation and preparation of this Agreement; (b) has read the Agreement and
has had the opportunity to discuss it with counsel of its own choosing; (c) it
is fully aware of the contents and legal affect of this Agreement; (d) has
authority to enter into and sign the Agreement; and (e) enters into and signs
the same by its own free will.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first hereinabove written.
THE EMPLOYEE
Xxxxxxxxxxx Xxxxxx
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Date:
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THE COMPANY
Chartwell International, Inc.
Date: By:
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Name: Xxxx Xxxxxxx
Title: Acting President
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