SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.63
THIS
SEPARATION AGREEMENT AND GENERAL RELEASE (this
“Agreement”) is made and entered into as of this
10th day of
August, 2007 (the “Execution Date”), to be effective
as of the 2nd
day of July, 2007 (the “Effective Date”), by and
between Xxxx X. Xxxxx (the “Executive”) and Electronic
Clearing House, Inc., a Nevada corporation (together with any and all of its
subsidiaries as appropriate, the
“Company”).
RECITALS
A. The
Executive has served as the Chairman and Chief Executive Officer of Company,
and
desires to confirm his retirement, and corresponding resignation, from all
executive and employment positions at the Company and as a director of the
Company, effective as of the Effective Date.
B. As
a material inducement to the Company’s execution of this Agreement, the
Executive further desires to provide the Company with a general release and
to
enter into a non-competition agreement with the Company and certain other
agreements and covenants in exchange for certain payments payable to the
Executive under this Agreement, and the Company desires to make such payments
and enter into such agreements and covenants with the Executive on the terms
set
forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises, the Executive and the
Company agree as follows:
1. Retirement/Resignation.
1.1 The
Executive hereby confirms his retirement and resignation as the Chairman and
Chief Executive Officer of the Company and otherwise from all director,
executive and employment positions at the Company, effective as of the Effective
Date. The Executive further acknowledges and agrees that his position
as Chairman and Chief Executive Officer of the Company is ended and terminated
effective as of the Effective Date, and that his employment as such will not
be
continued or resumed again at any time. The Executive also hereby
confirms his resignation as a Director of the Company, effective as of the
Effective Date. The parties hereby acknowledge and agree that the
Executive also is relieved of his position as a signatory and responsible person
on the Company’s bank accounts effective as of the Effective
Date. The Executive hereby acknowledges and agrees that (i) the
Company has fully paid and satisfied all amounts properly due and owing to
the
Executive as a result of his employment with Company through the Effective
Date,
and (ii) in the absence of this Agreement, Executive would not be entitled
to
any of the payments provided for hereunder as a result of his retirement and
resignation. The parties will characterize the Executive’s departure
from the Company as a retirement, and corresponding resignation, from the
Company.
1.2 From
and after the Execution Date, the Executive agrees to make himself available
from time to time to consult with the Company, and provide general cooperation
and assistance in order to facilitate an orderly transition, as reasonably
requested by the Company (the “Transition
Assistance”); provided, such Transition Assistance is to be
provided at no out-of-pocket cost to the Executive, and shall generally be
provided at Executive’s convenience. The Executive shall receive no
additional compensation other than the Cash Compensation provided for herein
for
providing Transition Assistance.
2. Compensation.
2.1 Cash
Compensation. The Company will pay the Executive all
salary earned through the Effective Date and all accrued but unused vacation
time or PTO earned through the Effective Date (“Accrued
Compensation”). The Company will pay the Executive, in
separate payments, two years of Executive’s current base compensation
(representing an aggregate amount equal to $592,800.00), plus an amount equal
to
$150,000.00 (representing the aggregate of Executive’s bonus payments in the two
years prior to the Effective Date, but subject to a maximum cap of $150,000.00)
(the “Cash Compensation”) in accordance with the
following schedule of payments: (a) an initial lump-sum payment of
$300,000.00 to be paid within three (3) business days of the Execution Date,
(b)
$221,400.00 to be paid on January 2, 2008; and (c) $221,400.00 to be paid on
January 2, 2009. The parties intend that the Cash Compensation
payable pursuant to clauses (a) and (b) above shall be treated as a short-term
deferral as that term is used in Section 409A of the Internal Revenue Code
of,
as amended (the “Code”) and the regulations
promulgated thereunder (collectively, “Section
409A”). The parties intend that the Cash Compensation
payable pursuant to clause (c) above shall be treated as a separate payment
for
purposes of Section 409A and excluded from the definition of “deferred
compensation” pursuant to the regulations promulgated thereunder regarding
separation pay payable upon an involuntary separation from
service. The parties agree that the payment date for the Cash
Compensation payable pursuant to clauses (b) or (c) above may be accelerated
at
the written request of the Executive, and, upon such written request, each
such
payment will be paid within three (3) business days of such
request. The Accrued Compensation and the Cash Compensation will be
paid in accordance with the Company’s normal payroll practices and will be
subject to normal federal and state withholding obligations.
2.2 Stock
Options. Any and all stock options issued to
Executive pursuant to the Company’s Incentive Stock Option Plan 1992, as amended
(the “1992 Plan”), all of which are or shall be fully
vested as of the Effective Date, shall expire in accordance with their terms
based on the termination of the Executive’s employment with the Company,
effective as of the Effective Date. Any and all unvested stock
options issued to Executive pursuant to the Company’s Amended and Restated 2003
Incentive Stock Option, as amended (the “2003 Plan”),
shall immediately vest on the Effective Date. Any and all stock
options issued to Executive pursuant to the 2003 Plan shall expire,
notwithstanding the provisions thereof or the provisions of the 2003 Plan to
the
contrary, on the 360th day following
the
Effective Date. The stock options issued to Executive will otherwise
continue to be subject to the terms and conditions applicable to stock options
granted under the 1992 Plan or 2003 Plan, as applicable, and any applicable
stock option agreements between the Executive and the Company; provided,
however, that in the event of a conflict between the provisions of this
Agreement and the 1992 Plan, 2003 Plan or the applicable stock option
agreements, the provisions of this Agreement shall apply. Each of
Executive and Company acknowledge and agree that this Section 2.2 has
been expressly approved by the Compensation Committee of the Board of Directors
of the Company pursuant to the authority delegated to such committee under
the
1992 Plan and the 2003 Plan, each as has been previously approved by the
Company’s shareholders, and that no portion of the foregoing shall be deemed an
amendment or other modification of the 1992 Plan, 2003 Plan or any stock option
agreement issued thereunder.\
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2.3 Car
Payments. The Company will pay an amount equal to
$21,929.85, the payoff amount as of the Execution Date, directly to Nissan
Motor
Acceptance Corp in respect of the promissory note due for the Nissan Maxima
automobile previously provided for use to the Executive. The Company shall
not
be responsible for any other costs related to the vehicle or the Executive’s use
thereof following the Effective Date, including, but not limited to, insurance
(which must have been obtained by Executive within 30 days of the Effective
Date), all of which shall have been obtained by Executive on or after the
Effective Date at his own cost and expense.
2.4 Medical
Benefits. For a period of two (2) years after the
Effective Date, the Company shall continue to make available to Executive
medical benefits on a basis that is substantially similar (in benefits to
Executive and costs to Company), in the aggregate, to the benefits that were
available to the Executive immediately prior to the Effective Date.
3. Non-Admission
of Discrimination or Wrongdoing.
3.1 This
Agreement shall not in any way be construed as an admission by the Company
or
the Executive that it or he acted wrongfully with respect to the other, or
any
other person or entity.
3.2 The
Executive acknowledges and agrees that he has not suffered any discrimination
and/or harassment in terms, conditions or privileges of his employment based
on
age, race, gender, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sexual
orientation, or on any other basis. The Executive acknowledges and
agrees that he has no claim for employment discrimination and/or harassment
under any legal or factual theory.
4. Company
Property. Executive represents and agrees that, as of
the Execution Date, he has turned over to Company all correspondence, reports,
records, designs, patents, business plans, financial statements, manuals,
memoranda, customer lists, customer databases, charts, advertising materials,
other similar data and other property delivered to or compiled by Executive
by
or on behalf of the Company or its representatives, vendors or customers which
pertain to the business of the Company or future plans of the Company, and
any
other physical or personal property that are the property of Company that he
had
in his possession, custody or control (whether directly or indirectly) on the
Execution Date. Notwithstanding the foregoing, as soon as reasonably
practicable following the Execution Date, the Company will deliver to the
Executive or otherwise permit Executive to retain (i) the desktop and laptop
computers used by the Executive in the provision of his services to the Company
prior to the Effective Date, cleansed of all data and programs, together with
the docking station, mouse and keyboard used by the Executive with such
computers, (ii) his office chair, and (iii) his mobile phone; provided, however,
that the Company will not continue to pay or be responsible for any charges
or
fees incurred in connection with the use thereof; which such fees
shall become the sole responsibility of the Executive as of the Effective
Date. The Company also will deliver to the Executive a compact disk
containing a copy of the Executive’s contacts that were on such
computers. The Company will, for a period of one year from the
Effective Date, continue to accept messages and forward all personal and
non-business related calls received at Executive’s previously assigned (000)
000-0000 telephone number to the contact number provided by Executive. All
other
services, utilities, and other benefits not explicitly provided for herein
shall
be cancelled as of the Effective Date, including but not limited to home
internet access, mobile phone plans and usage and Blackberry or other similar
service.
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5. Trade
Secrets and Agreements Not to Solicit and Not to Compete; Company’s Right to
Seek Injunctive Relief.
5.1 The
Executive understands, acknowledges and agrees that in the course of employment
with the Company he has acquired confidential information and trade secrets
concerning the Company’s past, present or future clients, operations, plans,
methods of doing business (including, without limitation, customer lists),
projected and historical revenues, marketing, costs, production, growth and
distribution, and confidential business strategies (“Confidential
Information”). The Executive understands, acknowledges
and agrees that it would be extremely damaging to the Company if such
information were disclosed to a competitor or made available to any other person
or entity. The Executive understands and agrees that such
Confidential Information has been disclosed to the Executive in confidence,
that
he will keep such information secret and confidential and that he will not
in
any way use, distribute or disclose such information.
5.2 The
Executive further agrees that for a period of twelve (12) months from the
Effective Date (the “Restricted Period”), the
Executive shall not (i) directly or indirectly, engage, without the express
prior written consent of the Company, in any Competing Business, whether as
an
employee, director, consultant, partner, principal, agent, representative,
equity holder or in any other individual, corporate or representative capacity
(without limitation by specific enumeration of the foregoing), or render any
services or provide any advice to any Competing Business; and (ii) directly
or
indirectly, (a) with respect to the Business, solicit or divert or attempt
to
solicit or divert any business or clients or customers made known to the
Executive during his employment with the Company away from the Company, (b)
induce or attempt to induce customers, clients, suppliers, agents or other
Persons under contract or otherwise associated or doing business with Company
who are made known to the Executive during his employment with the Company,
to
reduce or alter any such association or business with the Company, and/or (c)
knowingly solicit or attempt to solicit any Person in the employment of the
Company to (I) terminate such employment, and/or (II) accept employment, or
enter into any consulting arrangement, with any Person other than the
Company. The Executive acknowledges and agrees that the Company
depends on the services and contributions of its employees and personnel,
including certain key employees and personnel of the Company who have
pre-existing business and personal relationships with the Executive and were
initially introduced to the Company by the Executive. The Executive
acknowledges and understands that the loss of the services of any such key
employees or personnel by the Company could materially and adversely affect
the
Company’s business, operations and prospects, and the covenants, agreements and
obligations set forth in this Section 5.2 are a material inducement to
the Company’s execution of this Agreement and its agreement to enter into the
obligations (including payment obligations) set forth herein. For the
purposes hereof, the following terms have the meanings ascribed to them
below: (i) “Business” means the business in
which the Company is engaged, including the business of developing, designing,
manufacturing, licensing, marketing, selling and/or distributing solutions
for
payment processing, including, without limitation, credit card processing,
debit
card processing, merchant accounts, check guarantee, check verification, check
conversion, check representment, check collection, and Automated Clearing House
check processing; (ii) “Competing Business” means any
business, activity or Person in direct or indirect competition (or seeking
or
contemplating to compete, directly or indirectly) with the Business; and (iii)
“Person” means an individual, a partnership, as
corporation, an association, a joint stock company, a trust, a joint venture,
an
unincorporated organization or any other form of legal entity.
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5.3 In
view of the nature of the Executive’s employment and the Confidential
Information and trade secrets that the Executive has received during the course
of his employment, and without limiting the generality of any other provision
of
this Agreement, the Executive also agrees that the Company would be irreparably
harmed by any violation or threatened violation of this Agreement and that,
therefore, the Company shall be entitled to an injunction prohibiting the
Executive from any violation or threatened violation of this Agreement, in
addition to any other relief, including monetary damages, to which the Company
may be entitled.
5.4 The
Executive agrees that the terms and the time periods provided for, and the
geographical area encompassed by, the covenants contained in Section 5
hereof are necessary and reasonable in order to protect the good will and value
of the Business. The parties agree that the execution, delivery and
performance of this Agreement are in partial consideration of and a condition
to
the Company’s obligation to pay the Cash Compensation to the
Executive. If any court having jurisdiction at any time hereafter
shall hold any provision or clause of this Agreement to be unreasonable as
to
its scope, territory or term, and if such court in its judgment or decree shall
declare or determine that scope, territory or term which such court deems to
be
reasonable, then such scope, territory or term, as the case may be, shall be
deemed automatically to have been reduced or modified to conform to that
declared or determined by such court to be reasonable.
6. Acknowledgements.
6.1 The
Executive hereby acknowledges and agrees that the Cash Compensation payments
specified in Section 2.1 above is not required under the Company’s normal
policies and procedures and is provided as consideration for the agreements,
covenants and obligations set forth herein, and in particular, as consideration
for the covenants, agreements and obligations set forth in Sections 5,
8 and 9 hereof.
6.2 The
Executive further acknowledges and agrees that the payments referenced in
Section 2.1 above also constitute adequate and valuable consideration, in
and of themselves, for the promises contained in this Agreement and the
foregoing referenced covenants, agreements and obligations.
6.3 The
Executive further acknowledges and agrees that (i) in the event of any breach
of
Executive’s agreements, covenants and obligations set forth herein, including,
without limitation, the agreements, covenants and obligations set forth in
Sections 5, 8 and 9 hereof, or (ii) in the event that the
Board of Directors of the Company determines that, in the course of Executive’s
employment with the Company, Executive had violated his fiduciary or other
duties to the Company, or had otherwise caused the Company to incur monetary
damages or other damages, losses, costs or expenses as a result of Executive’s
negligence or misconduct, then, in addition to any and all other rights and
remedies to which the Company may be entitled to hereunder or under any
applicable laws, Executive shall pay to the Company all of the Cash Compensation
and other separation benefits (or the value thereof) Executive previously
received hereunder, and the Company shall be entitled to withhold indefinitely
any and all remaining Cash Compensation and other separation benefits (or the
value thereof) to be provided hereunder, and may use any and all such amounts
to
offset any damages, losses, costs or expenses incurred. Executive
agrees to pay to the Company any and all such amounts within sixty (60) days
of
the Company’s written notification to Executive of the Board of Directors’
determination.
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7. Covenant
Not to Xxx.
7.1 The
Executive agrees that he will not file a lawsuit, administrative complaint
or
charge of any kind with any court, governmental or administrative agency or
arbitrator against the Company, or any of the Company’s parents, subsidiaries,
partners, affiliates, shareholders, directors, officers, employees, agents,
representatives, predecessors, successors or assigns, asserting any claims
that
are released in this Agreement.
7.2 The
Executive represents and agrees that, before signing this Agreement, he has
not
filed or pursued any complaints, charges or lawsuits of any kind with any court,
governmental or administrative agency or arbitrator against the Company or
any
of the Company’s parents, subsidiaries, partners, affiliates, shareholders,
directors, officers, employees, agents, representatives, predecessors,
successors or assigns, asserting any claims that are released in this
Agreement.
8. General
Release.
8.1 Release
by the Executive. As a material inducement for the
Company to enter into this Agreement, and as partial consideration for the
payments provided herein, the Executive knowingly and voluntarily waives and
releases all rights and claims, known and unknown, which the Executive may
have
against the Company, and/or any of the Company’s related or affiliated entities
or successors, or any of their current or former parents, subsidiaries,
partners, affiliates, shareholders, directors, officers, employees, agents,
representatives, predecessors, successors or assigns (the “Company
Releasees”), including without limitation, any and all charges,
complaints, claims, liabilities, obligations, promises, agreements, contracts,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses of any kind arising out of, resulting from
or
in any manner relating to the Executive’s employment by the Company
up to the date of this Agreement, the termination of the Executive’s employment
hereunder or the parties’ entry into this Agreement. The Executive’s
general release under this Agreement includes, but is not limited to, claims
for
employment discrimination, harassment, wrongful termination, constructive
termination, violation of public policy, breach of any express or implied
contract, breach of any implied covenant, fraud, intentional or negligent
misrepresentation, emotional distress, defamation, libel, or any other claims
relating to the Employee’s relationship with Company. The Executive’s
general release also includes a release of any claims under any federal, state
or local laws or regulations, including, but not limited to: (a) Title VII
of
the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq. (race,
color, religion, sex, and national origin discrimination; (b) the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. (age
discrimination); (c) Section 1981 of the Civil Rights Act of 1866, 42 U.S.C.
1981 (race discrimination); (d) the Equal Pay Act of 1963, 29 U.S.C. § 206
(equal pay); (e) the California Fair Employment and Housing Act, Cal. Gov’t.
Code §12900, et. seq. (discrimination, including race, color,
national origin, ancestry, disability, medical condition, marital status, sex,
sexual orientation; sexual or racial harassment and age); (f) the California
Labor Code § 200, et. seq. (salary, commission, compensation,
benefits and other matters); (g) the Fair Labor Standards Act, 29 U.S.C. § 201,
et. seq. (wage and hour matters, including overtime pay); (h) the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 42 U.S.C. S
1395(c) (insurance matters); (9) Executive Order 11141 (age discrimination);
(i)
Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et.
seq. (disability discrimination); (j) the Xxxxxxx Retirement Income
Security Act of 1974, 29 U.S.C. § 1001, et. seq. (employee benefits); (k)
Title I of the Americans with Disabilities Act (disability discrimination);
California Labor Code Section 132a (discrimination based on filing a workers’
compensation claim); and (l) any applicable California Industrial Welfare
Commission Order (wage matters). The Executive is not releasing any
claims (a) based on acts or events occurring after the signing of this
Agreement, (b) rights to benefits that have vested under any Company benefit
plan, (c) any claims to indemnification as a director or officer under or
pursuant to Company’s Certificate of Incorporation or Bylaws, and (d) any rights
to Directors’ and Officers’ insurance coverage. The matters that are
the subject of the releases referred to in this Section 8.1 are referred
to herein as the “Executive Released
Matters.”
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8.2 Unknown
Claims. The Executive acknowledges that there is a risk
that subsequent to the execution of this Agreement, the Executive will incur
or
suffer damage, loss or injury to persons or property that is unknown or
unanticipated at the time of the execution of this Agreement. The
Executive hereby specifically assumes such risk and agrees that this Agreement
and the releases contained herein shall and do apply to all unknown or
unanticipated claims, as well as those currently known or
anticipated. Accordingly, the Executive acknowledges that he has read
the provisions of California Civil Code Section 1542, which provides as
follows:
| “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” |
Notwithstanding
the provisions of Section 1542, and for the purpose of implementing a full
and
complete release and discharge of the Company and others released herein, the
Executive expressly acknowledges that this Agreement is intended to include
and
does include in its effect, without limitation, all claims which he does not
know or suspect to exist in his favor against the Company Releasees, and that
this Agreement contemplates the extinguishment of any such claim or
claims.
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8.3 Assumption
of Risk; Investigation of Facts. The Executive
hereby expressly assumes the risk of any mistake of fact or that the true facts
might be other than or different from the facts now known or believed to exist,
and it is the Executive’s express intention to forever settle, adjust and
compromise any and all disputes between and among the Executive and the Company
Releasees, finally and forever, and without regard to who may or may not have
been correct in their respective understandings of the facts or the law relating
thereto. In making and executing this Agreement, the Executive
represents and warrants that he has made such investigation of the facts and
the
law pertaining to the matters described in this Agreement as he deems necessary,
and he has not relied upon any statement or representation, oral or written,
made by the Company with respect to any of the facts involved in any dispute
or
possible dispute between the parties hereto, or with respect to any of his
rights or asserted rights, or with respect to the advisability of making and
executing this Agreement.
8.4 Ownership
of Claims. The Executive
represents and agrees that he has not assigned or transferred, or attempted
to
assign or transfer, to any person or entity, any of the Executive Released
Matters.
8.5 No
Representations. Each
party represents and agrees that no promises, statements or inducements have
been made to such party that caused such party to sign this Agreement other
than
those expressly stated in this Agreement.
9. Release
of Age Discrimination
Claims.
9.1 Age
Discrimination is Specifically
Intended to be Included as an Executive Released
Matter. The Executive specifically intends that this
Agreement shall include a complete release of claims under the Age
Discrimination in Employment Act of 1967 (the “ADEA”;
29 U.S.C. §§ 621 etseq.), as amended by the Older Workers’ Benefit
Protection Act of 1990, except for any allegation that a breach of this Act
occurred following the date of this Agreement.
9.2 Additional
Consideration. The Executive
agrees and promises that this Agreement contains obligations by the Company
to
the Executive that are in addition to consideration to which the Executive
was
otherwise entitled from the Company. In addition, the Executive
acknowledges and agrees that additional consideration has been provided by
the
Company (beyond that which would have otherwise been provided) in order to
effect a valid waiver of the Executive’s claims under the Federal age
discrimination laws.
9.3 Reasonable
Time to Consider Settlement Agreement. The Executive acknowledges
that he has been given a reasonable period of time (a maximum of twenty-one
(21)
days, if he so chooses) to consider this Agreement before signing this
Agreement. The Executive understands that he has seven (7) days
following signing of this Agreement to rescind it, but only insofar as it
effects a release of a claim for violation of the ADEA, in which case it shall
remain fully effective in all other respects. To rescind this
Agreement as to the ADEA, the Executive agrees to fax a letter signed by the
Executive to the Company, by the end of the seven (7)-day period. The
remainder of this Agreement shall remain in full force and effect.
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9.4 Non-Release
of Future Claims. The Executive is hereby advised that this
Agreement does not waive or release any rights or claims that the Executive
may
have under the ADEA, or otherwise, which arise after the date the Executive
signs this Agreement.
10. Confidentiality
of this Agreement. The Executive agrees to keep the
terms of and amount paid under this Agreement completely confidential, and
not
to disclose such information to anyone other than his spouse, attorneys and
licensed tax and/or professional investment advisor (hereafter referred to
as
the “Executive’s Confidants”), all of whom will be
informed of and be bound by this confidentiality provision. Neither
the Executive nor the Executive’s Confidants will disclose the terms of this
Agreement to anyone, including without limitation, any representative of any
print, radio or television media, to any past, present or prospective applicant
for employment with the Company, executive recruiter or “headhunter,” to any
counsel for any current or former employee of the Company, to any other counsel
or third party, or to the public at large.
11. Goodwill
And Reputation of Company and Executive. Each of the
Executive and the Company further agrees not to take actions or make statements,
written or oral, that disparage or defame the goodwill or reputation of the
other, or any the other’s respective parents, subsidiaries, partners,
affiliates, shareholders, directors, officers, employees, agents,
representatives, predecessors, successors, assigns, heirs, executors or
administrators.
12. Attorney’s Fees. The
losing party shall be liable to the prevailing party for its reasonable costs
and attorney’s fees, including the costs of the arbitrator in any arbitration,
incurred in any action to enforce this Agreement.
13. Independent
Counsel; Interpretation. THE EXECUTIVE HEREBY
EXPRESSLY REPRESENTS, ACKNOWLEDGES AND CONFIRMS THAT HE HAS BEEN ADVISED TO
SEEK
AND OBTAIN LEGAL ADVICE FROM INDEPENDENT COUNSEL REPRESENTING HIS INTERESTS
WITH
RESPECT TO THIS AGREEMENT, THAT HE HAS HAD THE FULL RIGHT AND OPPORTUNITY TO
CONSULT WITH SUCH COUNSEL, THAT HE HAS AVAILED HIMSELF OF THIS RIGHT AND
OPPORTUNITY, THAT HE HAS CAREFULLY READ AND FULLY UNDERSTANDS THIS AGREEMENT
IN
ITS ENTIRETY, THAT HE IS FULLY AWARE OF THE CONTENTS HEREOF AND THE MEANING,
INTENT AND LEGAL EFFECT OF THIS AGREEMENT, AND THAT HE HAS EXECUTED THIS
AGREEMENT FREE FROM COERCION, DURESS OR UNDUE
INFLUENCE. SPECIFICALLY, BY SIGNING THIS AGREEMENT, EXECUTIVE
UNDERSTANDS, AND HEREBY ACKNOWLEDGES AND CONFIRMS, THAT HE MAY BE GIVING UP
SIGNIFICANT LEGAL RIGHTS. SHOULD ANY PROVISION OF THIS AGREEMENT
REQUIRE JUDICIAL INTERPRETATION, IT IS AGREED THAT A COURT INTERPRETING OR
CONSTRUING THE SAME SHALL NOT APPLY A PRESUMPTION THAT THE TERMS HEREOF SHALL
BE
MORE STRICTLY CONSTRUED AGAINST ANY PARTY BY REASON OF THE RULE OF CONSTRUCTION
THAT A DOCUMENT IS TO BE CONSTRUED MORE STRICTLY AGAINST THE PARTY WHO ITSELF
OR
THROUGH ITS AGENT PREPARED THE SAME, IT BEING AGREED THAT ALL PARTIES HERETO
HAVE PARTICIPATED IN THE PREPARATION OF THIS AGREEMENT.
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14. Notices.
Any notice required to be given or delivered by one party to the other hereunder
shall be in writing and addressed as specified below or at such other addresses
as shall be specified by the parties by like notice. All notices
shall be deemed effectively given upon personal delivery, (a) five (5) days
after deposit in the United States mail by certified or registered mail (return
receipt requested), (b) two (2) business day after its deposit with any return
receipt express courier (prepaid), or (c) one (1) business day after
transmission by facsimile.
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If
to the Company:
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If
to the Executive:
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Electronic
Clearing House, Inc.
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Xxxx
X. Xxxxx
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000
Xxxxx Xxxxxxxxx
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Xxxxxxxxx,
XX 00000
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Fax:
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With
a copy to:
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Xxxxxx
Xxxxxxxx & Markiles, LLP
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00000
Xxxxxxx Xxxxxxxxx
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00xx
Xxxxx
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Xxxxxxx
Xxxx, XX 00000
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Attn: V.
Xxxxxx Xxxxxx, Esq.
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Fax: 000-000-0000
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15. Further
Actions. Whether or not specifically required under the
terms of this Agreement, each party hereto shall execute and deliver such
documents and take such further actions as shall be necessary in order for
such
party to perform all of his or its obligations specified herein or reasonably
implied from the terms hereof.
16. Successors,
Third Party Beneficiaries.
16.1 This
Agreement is personal to the Executive and, without the prior written consent
of
the Company, is not assignable by the Executive. This Agreement will
inure to the benefit and be enforceable by the Executive’s legal representatives
(including any duly appointed guardian) acting in their capacities as such
pursuant to applicable law.
16.2 This
Agreement will inure to the benefit of and be binding on the Company and its
successors and assigns. The Company will be entitled to assign all of
its obligations hereunder to any successor (direct or indirect and whether
by
purchase, merger, consolidation, share exchange or otherwise) to the business,
properties and assets of the Company; provided, however, that the
Company will remain liable for the full, timely performance of all the
obligations so assigned as if such assignment had not been made.
16.3 Except
as otherwise expressly provided in this Agreement, this Agreement is not
intended, and shall not be construed, deemed or interpreted, to confer on
any person or entity not a party hereto any rights or remedies
hereunder.
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17. Execution
In Counterparts. This Agreement may be executed in
two (2) or more counterparts, all of which taken together shall constitute
one agreement.
18. Severability
and Governing Law.
18.1 Should
any of the provisions in this Agreement be declared or be determined to be
illegal or invalid, all remaining parts, terms or provisions, or any sections,
subsections, paragraph or subparagraphs, shall be valid, and the illegal or
invalid part, term or provision, or section, subsection, paragraph or
subparagraph, shall be deemed not to be a part of this Agreement.
18.2 This
Agreement is made and entered into in the State of California and shall in
all
respects be interpreted, enforced and governed under the laws of
California.
19. Proper
Construction.
19.1 The
language of all parts of this Agreement shall in all cases be construed as
a
whole according to its fair meaning, and not strictly for or against any of
the
parties.
19.2 As
used in this Agreement, the term “or” shall be deemed to include the term
“and/or” and the singular or plural number shall be deemed to include the other
whenever the context so indicates or requires.
19.3 The
paragraph headings used in this Agreement are intended solely for convenience
of
reference and shall not in any manner amplify, limit, modify or otherwise be
used in the interpretation of any of the provisions hereof.
20. Entire
Agreement. This Agreement is the entire agreement
between the Executive and the Company, and fully supersedes any and all prior
agreements or understandings between the parties pertaining to its subject
matter.
[Signatures
appear on next page]
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PLEASE
READ CAREFULLY. THIS CONSULTING AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE
OF ALL KNOWN AND UNKNOWN CLAIMS.
|
DATE:
|
8/9/07
|
/s/
Xxxx X. Xxxxx
|
|
|
XXXX
X. XXXXX
|
|||
|
DATE:
|
08-10-07
|
ELECTRONIC
CLEARING HOUSE, INC.
|
|
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
Name: XXXXXXX
XXXXXX
|
|||
|
Title: CHIEF
EXECUTIVE OFFICER
|
|||
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