EXHIBIT 10.28
SUPPLEMENTAL SEVERANCE AGREEMENT
This agreement (the "Agreement") is entered into as of December 15, 1994,
between The System Works, Inc., a Georgia corporation (the "Company") and
Xxxxxxxxxxx X. Xxxx ("Employee").
RECITALS
A. The Company desires to continue to retain the services of Employee.
B. This Agreement with Employee is in furtherance of that aim of the
Company.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following definitions:
1.1 The "Board" means the Board of Directors of the Company.
1.2 "Date of Termination" means: (i) in the event of Termination for
Disability, 30 days after Notice of Termination is given (provided that Employee
has not returned to the performance of Employee's duties on a full-time basis
during such 30-day period); (ii) in the event of Termination For Cause, the date
specified in the Notice of Termination; and (iii) in the event of Termination
for any other reason, the date on which a Notice of Termination is given.
1.3 "Disability" means the total and permanent inability of Employee
to perform the usual duties of Employee's employment due to illness, accident
or other physical and mental incapacity, as determined by a physician selected
by the Company and acceptable to Employee or Employee's legal representative
(which agreement as to acceptability shall not be unreasonably withheld).
1.4 "Notice of Termination" means a notice of Termination indicating
the specific provisions of this Agreement under which the Termination is
effected and setting forth
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circumstances providing a basis for such Termination. Any purported Termination
during the term of the Agreement by either the Company or Employee will be
communicated by a written Notice of Termination.
1.5 "Termination" means termination of the Employee's employment by
the Company and all of the Company's subsidiaries such that Employee is not
employed by any of the Company or the Company's subsidiaries.
1.6 "Termination for Cause" means Termination by the Company upon the
affirmative vote of at least a majority of the Board Members by reason of (i)
Employee's willful material dishonesty towards, fraud upon, or deliberate injury
or attempted injury to, the Company or (ii) Employee's willful deliberate
repeated failure to perform Employee's reasonable employment duties (other than
by reason of Employee's incapacity due to physical or mental illness) resulting
in material injury to the Company, where such failure is not remedied within a
reasonable period of time after receipt of written notice from the Company;
provided, that a Termination shall not be deemed to be a Termination for Cause
if such Termination is effected on the basis of any act or omission believed by
Employee in good faith to have been in, or not opposed to, the best interests of
the Company.
1.7 "Termination for Disability" means Termination by the Company due
to the Employee's Disability which Disability has continued in excess of six
months.
1.8 "Termination for Good Reason" shall mean Termination by
Employee by reason of any of the following:
(a) A reduction in the overall level of Employee's compensation
or benefits;
(b) A significant reduction in Employee's duties,
responsibilities, or authority;
(c) The Company requiring Employee to be based (other than on a
temporary basis), at any office or location other than the Company's executive
office at Marietta, Georgia; or the Company's offices at London, England.
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2. Termination Payments.
2.1 Salary. If the Employee's employment is terminated by the
Company other than as a Termination for Cause or Termination for Disability or
terminated by the Employee as a Termination for Good Reason, the Employee shall
receive salary continuation pay from the Date of Termination for a period of
twelve months equal to Employee's then current base salary less any amounts
earned by Employee as a consultant or employee during such twelve month period.
Such salary continuation payments shall be paid periodically to the Employee in
accordance with the schedule used to make salary payments to the Company's
regular full-time employees.
2.2 Not Exclusive. The payments made by the Company under this
Agreement shall be in addition to all other benefits to which Employee may be
entitled under any plan or arrangement with the Company.
3. Term. This Agreement shall be effective as of December 15, 1994 and
shall continue in effect for so long as Employee is employed by the Company.
4. Miscellaneous.
4.1 Employment at Will. The Company and Employee each acknowledge
that the employment of the Employee is "at will" and may be terminated by the
Employee or by the Company at any time.
4.2 Withholding. The Company shall withhold from any amounts payable
to Employee under this Agreement such federal, state and local taxes and other
amounts as shall be required to be withheld pursuant to any applicable law or
regulation.
4.3 Assignment. The rights and benefits of Employee under this
Agreement are personal to Employee and shall not be assigned except with prior
written consent of the Company. This Agreement shall, however, inure to the
benefit of Employee's legal representatives, executors, administrators and
heirs.
4.4 Notices. Any notice under this Agreement shall be in writing,
signed by the party making the notice, and shall be
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delivered personally, or sent by certified or registered mail, postage pre-paid
addressed as follows:
If to the Employee: Xxxxxxxxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
If to Company: Xxxxx X. Xxxxxxxx
Chief Financial Officer
The System Works, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
A party may change such party's address by notice given to the other party.
4.5 No Mitigation. In no event shall Employee be obligated to seek
other employment or to take any other action by way of mitigation of the amounts
payable under this Agreement, which amounts shall be paid in full
notwithstanding Employee obtaining other employment.
4.6 Governing Law. This Agreement shall be governed by and enforced
in accordance with the laws of the State of Georgia applicable to contracts
entered into and wholly to be performed in the state of Georgia by Georgia
residents.
4.7 Arbitration; Attorney's Fees. Any dispute or controversy arising
under in connection with this Agreement shall be settled exclusively by
arbitration in Atlanta, Georgia, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court of competent jurisdiction. The parties shall
use their best efforts to conduct any arbitration called for under this
Agreement within 45 days after either party gives notice of demand for
arbitration. If Employee is the prevailing party in any arbitration or other
legal action, Employee shall be entitled to attorneys fees and costs of suit.
4.8 Enforcement. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
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The parties have executed this Agreement as of the date set forth at the
beginning of this Agreement.
THE SYSTEM WORKS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Director
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EMPLOYEE:
/s/ Xxxxxxxxxxx X. Xxxx
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Name: Xxxxxxxxxxx X. Xxxx
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