Attached files
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| 8-K - CAPITAL GROWTH SYSTEMS INC /FL/ | v211998_8-k.htm |
EXHIBIT
99.1
RELEASE
AGREEMENT
This
Release Agreement is entered into this 14th day of February, 2011 (“Agreement”),
by and between CAPITAL GROWTH SYSTEMS, INC., a Florida corporation, having its
principal place of business at 200 South Wacker Drive, Suite 1650, Chicago,
Illinois 60606 (the “Company”) and George A. King (“Executive”).
WHEREAS,
the Company and Executive are parties to that certain Employment Agreement dated
as of September 2006 and amended effective December 28, 2007 (the “Employment
Agreement”); and
WHEREAS,
the Company and Executive have agreed to terminate the Employment Agreement
releasing each other from all further obligations except those specifically
identified therein as surviving such termination.
THEREFORE,
in consideration of the covenants and obligations set forth below, the Company
and Executive agree as follows:
1. Separation from
Employment. Executive’s employment with the Company will
terminate on February 14, 2011 (the “Effective Date”).
2. Notice. Executive
agrees that the notice of his termination he has heretofore received is adequate
for the purpose of the notice requirements in the Employment
Agreement.
3. Severance. The
Company agrees to pay Executive severance benefits in accordance with the terms
of the Employment Agreement, as may be amended from time to time, but more
specifically as hereinafter described, commencing as soon as practicable
following the expiration of the rescission period referred to in Section 8(e)
below: (i) any Accrued Obligations of Executive as defined in the
Employment Agreement, which Company and Executive have agreed shall be six (6)
weeks of accrued and unused vacation pay, less all customary and standard
withholding and deductions; and (ii) severance in the amount of Sixty-Two
Thousand Five Hundred ($62,500) Dollars to be paid in six (6) equal installments
of Ten Thousand Four Hundred Sixteen and 66/100 ($10,416.66) Dollars, bi-monthly
with a first payment to be made at the end of the month following the Effective
Date, less all customary and standard withholding and deductions, representing a
three (3) month continuation of Executive’s base salary by the Company (the
“Continuation Period”).
By his
execution of the Release Agreement, Executive acknowledges that he shall not be
paid for or receive any Stock Options, Performance Equity Options or Additional
Stock Options, as were referenced in the Employment Agreement and Amendment No.
1 to the Employment Agreement.
4. Benefits. The
Company shall continue to pay for fifty (50%) percent of Executive’s health
insurance coverage through the Continuation Period in accordance with
the most favorable plan, practices, programs or policies of the Company then in
effect. Thereafter, Executive shall be eligible to elect to purchase,
at his own expense, health insurance coverage under the Company’s group
insurance program as allowed pursuant to the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”), at the Company’s group rate, for the remainder of
the period which expires eighteen (18) months from the Effective
Date. In the event that during the Continuation Period Executive
becomes subject to a health insurance plan (“New Plan”) other than that provided
by the Company or pursuant to COBRA coverage as aforesaid, then effective as of
the date of commencement of coverage of Executive pursuant to the New Plan, the
Company shall be under no further obligation to provide health insurance
coverage to Executive. Executive agrees to provide to the Company
written notice of commencement of coverage under the New Plan, if any, no later
than the date of commencement of such coverage.
The
Company shall continue life insurance and other benefits for Executive through
the Continuation Period in accordance with the most favorable plan, practices,
programs or policies at the Company then in effect, subject to no obligation to
do so following commencement of the New Plan.
5. Release of
Claims. After adequate opportunity to review this Release
Agreement and to obtain the advice of legal counsel of Executive’s choice,
Executive hereby releases, acquits and forever discharges the Company, each of
the other Companies, Pivotal Global Capacity, LLC (“Pivotal”) and all of the
respective directors, officers, members, managers, agents, employees,
affiliates, parents, successors and assigns of each of the Companies and
Pivotal, from any and all liability whatsoever arising from or relating
to: (i) his employment by the Company or any of its subsidiaries
(collectively, the “Companies”), (ii) his separation from employment with the
Company; or (iii) any other claim or liability, but excluding liabilities from
claims arising under this Agreement. Subject to the foregoing, by
this Release, Executive gives up any right to make a claim, bring a lawsuit, or
otherwise seek money damages or court orders as a result of or arising out of
his employment by the Company, his separation from employment with the Company,
any of the transactions associated with the bankruptcy of the Company or the
purchase of assets of the Companies by Pivotal or
otherwise. Executive hereby acknowledges and intends that this
Release applies to any statutory or common law claims which have arisen through
the date of Executive’s signature below, including but not limited to, any and
all claims of unpaid wages, stock options, wrongful termination, defamation,
intentional or negligent infliction of emotional distress, negligence, breach of
contract, fraud, and any claims under the Age Discrimination in Employment Act
(ADEA), Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Illinois Human Rights Act (IHRA), the New York Human
Rights Law, the Family and Medical Leave Act, the Employee Retirement Income
Security Act, the Whistleblower Protection Act of 1989, the Illinois
Whistleblower Act, New York Labor Laws § 740 and 741, Sarbanes Oxley, and any
other similar local, state or federal statute(s). Executive
acknowledges that this Release includes all claims Executive is legally
permitted to release and as such does not apply to any claim for reemployment
benefits, nor does it preclude Executive from filing a charge of discrimination
with the state Department of Human Rights or the federal Equal Employment
Opportunity Commission although Executive would not be able to recover any
damages if Executive filed such a charge. This Release includes but
is not limited to all claims relating to Executive’s employment and the
separation of Executive’s employment. This Release Agreement shall be
binding upon Executive and upon his heirs, administrators, representatives,
executors, successors and assigns. Notwithstanding anything to the
contrary contained herein, in no event shall this Release Agreement constitute a
release by Executive of his rights with respect to accrued benefits to which he
would otherwise be entitled under any of the Company's employee benefit plans,
programs or other employee benefit arrangements (excluding any severance plans
or arrangements).
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6. Covenants and
Creations. Executive acknowledges that his obligations under
Sections 9 and 10 of the Employment Agreement shall survive Executive’s
termination and the termination of the Employment Agreement. In the
event of a breach or threatened breach by Executive of Section 9 or Section 10
of the Employment Agreement, Executive agrees that Executive’s breach of the
terms of either Section 9 or Section 10 shall constitute irreparable harm to
Company and Company shall be entitled to obtain an injunction restraining such
breach, but nothing herein shall be construed as prohibiting Company from
pursuing any other remedy available to Company for such breach or such
threatened breach. Pivotal shall be deemed to be a third-party
beneficiary for purposes of enforcing all of the rights of Company under this
Agreement, including but not limited to any action to enforce the terms of
Section 9 and Section 10 of the Employment Agreement.
7. Entire
Agreement. This instrument contains the entire agreement of
the parties. It may not be changed except by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought. Company shall have
the right to assign this Agreement to Pivotal at any time on or following the
date of the transfer of a material portion of the assets of the Company to
Pivotal or any of its Affiliates.
8. Notification of Rescission
Rights.
(a) This
Release Agreement contains a release of certain legal rights which Executive may
have to bring a claim of age discrimination under the ADEA or the IHRA or the
New York Human Rights Law. Executive should consult with an attorney
regarding such release and other aspects of this Release Agreement before
signing.
(b) The
termination of Executive’s employment by the Company will not be affected by
Executive’s acceptance or failure to accept this Release
Agreement. If Executive does not accept the terms hereof, or if
Executive revokes his acceptance of this Release Agreement, the Company will not
provide to him the benefits described herein.
(c) Executive
has been given twenty-one (21) days to consider whether or not to sign an
agreement containing the Release of Claims set forth in Section 5, starting from
January 19, 2011. Executive may sign this agreement at any time prior
to its revocation by Company.
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(d) After
Executive has accepted this Release Agreement by signing it, he may revoke his
acceptance for a period of seven (7) days after the date he signed this Release
Agreement. This Release Agreement will not be effective until this
seven (7) day revocation period has expired.
(e) If
Executive wishes to revoke his acceptance of this Release Agreement he must
notify the Company in writing within the seven (7) day revocation
period. Such notice must be delivered to the Company in person or
mailed by certified mail, return receipt requested, addressed
to: Capital Growth Systems, Inc., 200 South Wacker Drive, Suite 1650,
Chicago, IL 60606, Attention: Board of Directors. If
Executive fails to properly deliver or mail such written revocation as
instructed, the revocation will not be effective. In the event of a
timely rescission, all obligations of the parties hereto shall be null and
void.
9. Prior
Agreements. This Agreement shall supersede all prior
agreements between the Company and the Executive.
10. Confidentiality of this
Agreement. The Company and Executive hereby agree to keep the
terms and conditions of this Agreement strictly confidential (except as to any
disclosures which may be required by any governmental agency or court of law)
and each agrees not to make, or cause to be made, oral or written statements or
communications which injure or impugn, or may intend to injure or impugn, either
party’s business reputation.
11. Validity. The
invalidity or unenforceability of any particular provision or language of this
Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if such valid or unenforceable provisions or
language were omitted.
12. Applicable
Law. This Agreement shall be governed by the laws of the State
of Illinois without reference to its conflict of law principles and shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, successors, and permitted assigns.
13. Arbitration. Any
controversy or claim arising out of or relating to this Agreement, or the breach
of this Agreement, other than claims for specific performance or injunctive
relief pursuant to Sections 9 and 10 of Executive’s Employment Agreement, shall
be settled by arbitration before one (1) arbitrator conducted in Chicago,
Illinois, and judgment upon any award rendered by the arbitrator may be entered
in Illinois State or United States Federal Court sitting in Chicago,
Illinois.
I agree
to accept the terms of this Release Agreement.
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COMPANY:
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EXECUTIVE:
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CAPITAL
GROWTH SYSTEMS, INC.
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By:
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GEORGE
A. KING
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Its:
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| Date: February __, 2011 | Date: February __, 2011 | ||
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