EXHIBIT 10.3
August 25, 2005
Xxxxx X. XxXxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
Re: Termination of your employment with Global Preferred Holdings, Inc.
Dear Xxxx:
In accordance with that certain letter executed by Global Preferred Holdings,
Inc. (the "Company")(1) and You dated July 6, 2005 (the "July Letter"), it is
agreed that your employment with the Company is terminated effective August 31,
2005 (the "Separation Date") pursuant to Section 4(F)(i) of the Employment
Agreement (defined herein). This letter agreement (the "Agreement") sets forth
the terms under which your employment with the Company is ending. In addition,
except as set forth below, this Agreement effectively terminates the following
documents: (i) Employment Agreement (Director - Financial Projects) between You
and the Company dated April 18, 2002 (the "Employment Agreement"); (ii) First
Amendment and Renewal to Employment Agreement of Xxxxx X. XxXxxxx dated April 1,
2003; (iii) Second Renewal of the Employment Agreement of Xxxxx X. XxXxxxx dated
January 1, 2004; (iv) letter from the Company to you dated March 12, 2004; (v)
Third Renewal of the Employment Agreement of Xxxxx X. XxXxxxx dated January 1,
2005; and (vi) letter from the Company to you dated January 28, 2005 ((i) - (vi)
collectively the "Employment Documents"). As we discussed, we desire to resolve
any and all issues relating to your employment and the conclusion of your
employment with the Company amicably and on mutually satisfactory terms.
Specifically, you ("You" or "Your") and the Company (collectively, the
"Parties") agree:
A. SEPARATION TERMS
1. Separation Benefits. Provided that You satisfy the conditions of this
Agreement, the Company will:
(a) Separation Payment. Make payments to You in equal installments for a
period of twelve (12) months (the "Separation Payments"). The
Separation Payments shall total $133,250. The Separation Payments
shall be paid in accordance with the Company's regular payroll
practices, provided that (i) the Company may, in its sole
discretion, at any time elect to pay any remaining installments in a
lump sum and (ii) the Company agrees that any installments remaining
unpaid at the time of the transfer of the remaining assets of the
Company to a liquidating trust (the "Liquidation Time") will be paid
to You prior to such transfer. On the fourth day after You return an
executed version of this Agreement to the Company's
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(1) The term "Company" includes the company's parents, subsidiaries,
affiliates and all related companies, as well as their respective
officers, directors, shareholders, employees, agents and any other
representatives, any employee benefits plan of the Company, and any
fiduciary of those plans.
/s/ DWM Page 1 of 6-Letter Agreement
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D.W.M.
EXHIBIT 10.3
Vice President, Xxxxx Xxxxxxxx, or her successor, the Company will
inform its Accounting department to process Your first payment,
which payment shall be made on the Company's next regular payroll
payment date following the Separation Date;
(b) Pro-Rata Annual Bonus. Pay You $21,700 as payment of Your pro-rata
portion of the 2005 annual bonus, which payment shall be made no
later than the Company's next regular payroll payment date following
the Separation Date;
(c) Additional Payments. Make payments to You in equal installments for
a period of twelve (12) months (the "Additional Payments"). The
Additional Payments shall total $14,496. The Additional Payments
shall be paid in accordance with the Company's regular payroll
practices, provided that (i) the Company may, in its sole
discretion, at any time elect to pay any remaining installments in a
lump sum and (ii) the Company agrees that any installments remaining
unpaid at the Liquidation Time will be paid to You prior to the
transfer to a liquidating trust. On the fourth day after You return
an executed version of this Agreement to the Company's Vice
President, Xxxxx Xxxxxxxx, or her successor, the Company will inform
its Accounting department to process Your first payment, which
payment shall be made on the Company's next regular payroll payment
date following the Separation Date;
(d) PTO. Pay You for Your then accrued unused paid time off as of the
Separation Date, which payment shall be made no later than the
Company's next regular payroll payment date following the Separation
Date;
(e) 401K Matching. Make any matching contributions to Your 401K account
as are required pursuant to the terms of the Company's 401K plan
currently in effect as of the date hereof; and
(f) Outplacement Services. Provide outplacement services from an
outplacement company approved by the Company through December 1,
2005. All fees will be paid directly to the outplacement company;
provided, however, (i) the Company shall only be obligated to pay up
to $5,500 toward such fees, and (ii) all requests for fees must be
submitted within thirty (30) days of Your incurrence of such
outplacement fee. All requests for payment of outplacement services
must be accompanied by a written invoice from the outplacement
company indicating what services were rendered. The Company will
only pay for reasonably necessary business expenses incurred by the
outplacement company in providing the outplacement services. You
acknowledge that the Company is not responsible for the quality of
services provided by the outplacement company.
All payments will be subject to applicable withholdings, including taxes and
Social Security. Because You are no longer employed, Your rights to any
particular employee benefit will be governed by applicable law and the terms and
provisions of the Company's various employee benefit plans. You acknowledge that
Your Separation Date will be the date used in determining benefits under all
Company employee benefit plans. The Company's obligations listed in
sub-paragraphs (a) - (f) above shall terminate immediately upon any breach by
You of this Agreement.
/s/ DWM Page 2 of 6-Letter Agreement
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D.W.M.
EXHIBIT 10.3
2. Release. In exchange for the separation benefits stated above, You release
and discharge the Company from any claim or liability, whether known or unknown,
arising out of any event, act or omission occurring on or before the day You
sign this Agreement, including, but not limited to, claims arising out of Your
employment or the cessation of Your employment, claims arising out of or
relating to the Employment Documents, claims arising by virtue of Your status as
an officer of the Company, claims for breach of contract, tort, employment
discrimination, retaliation, or harassment, as well as any other statutory or
common law claims, at law or in equity, recognized under any federal, state, or
local law. You also release any claims for unpaid back pay, sick pay, vacation
pay, expenses, bonuses, claims to stock options, claims to the vesting of stock
options, commissions, attorneys' fees, or any other compensation.
Notwithstanding the foregoing, this release contained in this Paragraph A.2
shall not affect your right to enforce this Agreement or the Asset and Stock
Purchase Agreement by and between the Company and Capstan International
Acquisitions, LLC dated July 6, 2005 ("Asset Purchase Agreement") in accordance
with their respective terms.
You agree that You are not entitled to any additional payment or benefits from
the Company, except as set forth in this Agreement. You further agree that You
have suffered no harassment, retaliation, employment discrimination, or
work-related injury or illness.
Notwithstanding anything to the contrary contained in this Agreement, this
release does not waive Your right to (i) claim or receive indemnification as an
officer of the Company under any applicable state laws, the Company's
Certificate of Incorporation, or the Company's By-laws, and (ii) claim or
receive insurance coverage or be defended under any directors and officers
insurance coverage which applies to directors and/or officers of the Company and
which applies to You in Your capacity as a former officer of the Company.
3. Post-Termination Voicemail and Email. Following the Separation Date, the
Company will use reasonable efforts to transition Your direct dial phone number
to You, or an entity designated by You, at Your instruction. During the period
from the Separation Date through 5:00 p.m., Atlanta time, on October 2, 2005,
unless terminated sooner upon ten (10) business days prior written notice, the
Company will continue to provide to You access to Your voicemail mailbox for the
purpose of retrieving voice messages and will forward, to an email address
designated by You, email received in Your email in-box maintained by the
Company. You acknowledge that the continued provision of these services are not
guaranteed and are subject to any technical problems that may affect the
Company's computer, communications and voicemail systems. In the event that the
Company will incur any additional out-of-pocket costs in providing this access,
the Company will itemize such costs for You and, if You approve such costs, then
you shall promptly reimburse the Company for such costs, as incurred. If you do
not approve such costs, then You waive the Company's obligation to provide such
access.
B. YOUR ONGOING OBLIGATIONS
1. Return of Company Property. Subject to the terms of the Asset Purchase
Agreement and Section 6 of the July Letter, You will, on the Separation Date,
return to the Company all of the Company's property, including, but not limited
to, computers, computer equipment, office equipment, cell phone, keys,
passcards, calling cards, credit cards, customer lists, rolodexes, tapes,
software, computer files, marketing and sales materials, and any other record,
document or piece of equipment belonging to the Company. Except as permitted by
the amendments to the Employment Agreement pursuant to Section 6 of the July
Letter, You will not retain any copies of the Company's property, including any
copies existing in electronic form, which are in
/s/ DWM Page 3 of 6-Letter Agreement
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D.W.M.
EXHIBIT 10.3
Your possession or control. You acknowledge that You have not and will not
destroy, delete, or alter any Company property without the Company's prior
written consent.
2. Future Employment. You agree that the Company has no obligation to consider
You for employment should You apply in the future.
3. Confidentiality. You acknowledge and agree that neither You nor anyone acting
on Your behalf has made or shall make any disclosures concerning the existence
or terms of this Agreement to any person or entity, including, but not limited
to, any representative of the media, Internet web page, blog or "chat room,"
judicial or administrative agency or body, business entity, or association,
except: (i) Your spouse; (ii) Your attorneys, accountants, or financial
advisors; (iii) other current employees of the Company; or (iv) any court or
government agency pursuant to an official request by such government agency,
court order, or legally enforceable subpoena. If You are contacted, served, or
learn that You will be served with a subpoena to compel Your testimony or the
production of documents concerning this Agreement or Your employment with the
Company, You agree to immediately notify the Company's Chief Accounting Officer,
Xxxxx Xxxxxxxx, or her successor, by telephone and as soon as possible
thereafter in writing. If You disclose the existence or terms of this Agreement
pursuant to sub-clauses (i) or (ii) of this paragraph, You shall inform such
person or entity (a) of this confidentiality provision, and (b) to maintain the
same level of confidentiality required by this provision. Any breach of this
provision by such person or entity will be considered a breach by You. You may
not use this Agreement as evidence, except in a proceeding in which a breach of
this Agreement is alleged.
4. Continuing Assistance. You agree to furnish such information and assistance
to the Company as it may reasonably request in connection with (i) any claim or
action brought against the Company by any third party, or (ii) other matter
pertinent to the operations, liquidation or dissolution of the Company, in which
You may have relevant information or knowledge, provided that such assistance
will be at reasonable times, for a reasonable duration and with appropriate
advance notice and with due consideration for Your incurred and documented
expenses pre-approved by the Company.
C. GENERAL PROVISIONS
1. No Admission of Liability. This Agreement is not an admission of liability by
the Company. The Company denies any liability whatsoever, other than with
respect to the payments or benefits payable by the Company as set forth in this
Agreement. The Company enters into this Agreement to reach a mutual agreement
concerning Your resignation from the Company.
2. Non-Disparagement. Each of the parties agrees not to make any disparaging or
defamatory statements, whether written or oral, regarding the other party.
3. Attorneys' Fees. In the event of litigation relating to this Agreement, the
Company shall, if it is the prevailing party, be entitled to recover attorneys'
fees and costs of litigation, in addition to all other remedies available at law
or in equity.
4. Waiver. The Company's failure to enforce any provision of this Agreement
shall not act as a waiver of that or any other provision. The Company's waiver
of any breach of this Agreement shall not act as a waiver of any other breach.
/s/ DWM Page 4 of 6-Letter Agreement
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D.W.M.
EXHIBIT 10.3
5. Severability. The provisions of this Agreement are severable. If any
provision is determined to be invalid, illegal, or unenforceable, in whole or in
part, the remaining provisions and any partially enforceable provisions shall
remain in full force and effect.
6. Governing Law. The laws of the State of Georgia shall govern this Agreement.
If Georgia's conflict of law rules would apply another state's laws, the Parties
agree that Georgia law shall still govern.
7. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties; provided, however, that Your post-termination obligations contained in
the Employment Agreement (as amended by Section 6 of the July Letter) are
incorporated by reference, shall remain in full force and effect, and shall
survive cessation of Your employment. You acknowledge that Your post-termination
obligations contained in the Employment Agreement, as amended by Section 6 of
the July Letter, are valid, enforceable and reasonably necessary to protect the
interests of the Company, and You agree to abide by such obligations. This
Agreement supersedes any prior communications, agreements or understandings,
whether oral or written, between the Parties arising out of or relating to Your
employment and the termination of that employment; provided, however, that the
Parties acknowledge and agree that this Agreement does not supersede Your
post-termination obligations contained in the Employment Agreement, as amended
by Section 6 of the July Letter. Other than this Agreement, no other
representation, promise or agreement has been made with You to cause You to sign
this Agreement.
8. Amendments. This Agreement may not be amended or modified except in writing
signed by both Parties.
9. Successors and Assigns. This Agreement shall be assignable to, and shall
inure to the benefit of, the Company's successors and assigns, including,
without limitation, successors through merger, name change, consolidation, or
sale of a majority of the Company's stock or assets, and shall be binding upon
You and Your heirs and assigns.
10. Offer Period. You have 3 days (the "Offer Period") from receipt of this
Agreement to consider whether to sign it. If You sign before the end of the
Offer Period, You acknowledge that Your decision to do so was knowing,
voluntary, and not induced by fraud, misrepresentation, or a threat to withdraw,
alter, or provide different terms prior to the expiration of the Offer Period.
11. Consent to Jurisdiction and Venue. You agree that any claim arising out of
or relating to this Agreement shall be brought in a state or federal court of
competent jurisdiction in Georgia. You consent to the personal jurisdiction of
the state and/or federal courts located in Georgia. You waive (i) any objection
to jurisdiction or venue, or (ii) any defense claiming lack of jurisdiction or
improper venue, in any action brought in such courts.
[SIGNATURES BEGIN ON THE NEXT PAGE.]
/s/ DWM Page 5 of 6-Letter Agreement
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D.W.M.
EXHIBIT 10.3
If the terms set forth in this Agreement are acceptable, please sign below and
return the signed original to me on or before August 31, 2005. If the Company
does not receive a signed original on or before the above-stated date, then this
offer shall be revoked and You shall not be entitled to any of the separation
benefits stated above.
Sincerely,
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Chief Accounting Officer
I acknowledge the validity of this 6 page Agreement and represent that I have
the legal capacity to enter into this Agreement. I acknowledge that I have had
the opportunity to consult with an attorney before signing this Agreement. I
have carefully read the Agreement, know and understand the terms and conditions,
including its final and binding effect, and sign it voluntarily.
/s/ Xxxxx X. XxXxxxx August 25, 2005
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Xxxxx X. XxXxxxx Date
/s/ DWM Page 6 of 6-Letter Agreement
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D.W.M.
