EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is made effective January 1,
2000 (the "Effective Date"), by and between Credit Management Solutions, Inc., a
Delaware corporation with principal offices located at 000 Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000 (the "Company"), and Xxxxxx Xxxxxxxx
(the "Executive").
WITNESSETH
WHEREAS, the Company has a need for the Executive's personal services in an
executive capacity; and
WHEREAS, the Executive possesses the necessary strategic, financial,
planning, operational and managerial skills necessary to fulfill those needs;
and
WHEREAS, the Executive and the Company desire to enter into a formal
Employment Agreement to fully recognize the contributions of the Executive to
the Company, to assure continuous harmonious performance of the affairs of the
Company, and to formalize in writing the terms and conditions under which he has
been employed by the Company since the Effective Date.
NOW, THEREFORE, in consideration of the mutual promises, terms, provisions,
and conditions contained herein, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following capitalized
terms shall have the following meanings:
a. "Affiliate" means any person or entity (i) that directly or indirectly
owns more than fifty percent (50%) of the Voting Stock (as defined below) of the
Company, or (ii) more than fifty percent (50%) of the Voting Stock of which is
directly or indirectly owned by the Company, or (iii) more than fifty percent
(50%) of the Voting Stock of which is directly or indirectly owned by another
person or entity that directly or indirectly owns more than fifty percent (50%)
of the Voting Stock of the Company.
b. "Change of Control" of a company means the occurrence of any of the
following:
(i) any "person," as such term is currently used in Section
13(d) of the Securities Exchange Act of 1934, becomes a "beneficial owner,"
as such term is currently used in Rule 13d-3 promulgated under that Act of
fifty percent (50%) or more of the Voting Stock of the company;
(ii) a majority of the Board of Directors of the company
consists of individuals other than Incumbent Directors, which term means
the members of the Board on the date hereof; provided that any individual
becoming a director subsequent to such date whose election or nomination
for election was supported by two-thirds of the
directors who then comprised the Incumbent Directors shall be considered to
be an Incumbent Director;
(iii) the Board of Directors of the company adopts any plan of
liquidation providing for the distribution of all or substantially all of
the company's assets;
(iv) all or substantially all of the assets or business of the
company are disposed of in any one or more transactions pursuant to a
merger, consolidation or other transaction (unless the shareholders of the
company immediately prior to such merger, consolidation or other
transaction beneficially own, directly or indirectly, in substantially the
same proportion as they owned the Voting Stock of the company, all of the
Voting Stock or other ownership interests of the entity or entities, if
any, that succeed to the business of the company); provided, however, that
this subsection (iv) shall not apply in the event of a merger or
consolidation of the Company with an Affiliate; or
(v) the company combines with another company and is the
surviving corporation but, immediately after the combination, the
shareholders of the company immediately prior to the combination hold,
directly or indirectly, fifty percent (50%) or less of the Voting Stock of
the combined company, (there being excluded from the number of shares held
by such shareholders, but not from the Voting Stock of the combined
company, any shares received by affiliates of such other company in
exchange for securities of such other company); provided, however, that
this subsection (v) shall not apply in the event of a combination of the
Company with an Affiliate.
c. "Good Reason" means any of the following events:
(i) a reduction in annual Salary (as defined below);
(ii) a failure by the Company, or Affiliate by which the Executive is
employed, to provide fringe benefits comparable to those offered to the
Executive's peer executives;
(iii) the failure of the Company, or Affiliate by which the Executive
is employed, to obtain by operation of law or otherwise the assumption of
its obligations to perform this Agreement from any successor to all or
substantially all of the assets of the Company or such Affiliate; or
(iv) a relocation of the Executive's worksite to a location which
increases the distance from the Executive's home to his worksite by more
than fifty (50) miles.
d. "Good Reason Upon Change In Control" means any of the following events
provided the event occurs either (i) less than eighteen (18) months after a
Change in Control of the Company, or an Affiliate if the Executive is employed
at that time by such Affiliate or the Company, or (ii) during the one-hundred
and eighty (180) day or shorter time period between (x) the execution by Company
(or such Affiliate) and a third party of a letter of intent or term sheet
reflecting the terms of such Change in Control, or receipt by the Company (or
such Affiliate) of a
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written offer from a third party reflecting such Change in Control, and (y) the
effective date of such Change in Control:
(A) any of the events which constitute Good Reason under Section 1(c)
above;
(B) a material diminution in the Executive's duties or
responsibilities; provided that a diminution shall not be deemed to
have occurred solely because that Executive no longer has duties and
responsibilities for a particular Affiliate as long as the Executive
continues to have the same level, type and scope of duties and
responsibilities as he had prior to the Change in Control; or
(C) the assignment to the Executive of duties that materially impair
his ability to perform the duties normally assigned to a person of his
title and position at a corporation of the size and nature of the
Company or Affiliate by which the Executive is employed (as
applicable).
e. "Voting Stock" means the issued and outstanding capital stock or other
securities of any class or classes having general voting power under ordinary
circumstances, in the absence of contingencies, to elect the directors of a
corporation.
f. "Termination Without Cause Upon Change in Control" means termination
of the Executive's employment without "Cause" (as defined in Section 5(a) below)
either (i) less than eighteen (18) months after a Change in Control of the
Company , or an Affiliate if the Executive is employed at that time by such
Affiliate or the Company, or (ii) during the one-hundred and eighty (180) day or
shorter time period between (x) the execution by Company (or such Affiliate) and
a third party of a letter of intent or term sheet reflecting the terms of such
Change in Control, or receipt by the Company (or such Affiliate) of a written
offer from a third party reflecting such Change in Control, and (y) the
effective date of such Change in Control.
2. Position.
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The Company hereby agrees to continue to employ the Executive to serve in
the role of President and Chief Executive Officer of Credit Online, Inc. (a
Delaware corporation), Credit Online, Inc. (a Maryland corporation), and CMSI
Credit Services, Inc. (a Delaware corporation). The Company reserves the right
to change the Executive's title, duties and/or responsibilities, and to reassign
the Executive to or from any Affiliate. The Executive accepts such employment
upon the terms and conditions set forth herein, and further agrees to perform to
the best of his abilities the duties generally associated with his position, as
well as such other duties as may be reasonably assigned by the Board of
Directors of the Company (the "Board"), the Chief Executive Officer or President
of the Company, and, if the Executive is employed by an Affiliate, the Chief
Executive Officer, President or Board of Directors of such Affiliate. The
Executive shall perform his duties diligently and faithfully and shall devote
his full business time and attention to such duties. Each party's rights and
obligations under this Section 2 are subject to Section 5 below.
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3. Term of Employment and Renewal.
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The term of the Executive's employment under this Agreement (the "Term")
will commence on the date of this Agreement (the "Effective Date") and continue
until terminated in accordance with Section 5 below.
4. Compensation and Benefits.
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(a) Salary. Commencing on the Effective Date, the Company agrees to pay
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the Executive a base salary at an annual rate of one hundred and seventy-five
thousand dollars ($175,000), payable in such installments as is the policy of
the Company (the "Salary"), but no less frequently than monthly. Thereafter, the
Company shall evaluate the Executive's Salary from time to time and make
adjustments, in its discretion, subject to the rights and obligations set forth
in Section 5 below.
(b) Bonus. In its sole discretion, the Company may make the Executive
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eligible to receive bonuses based on criteria to be determined by the Company
and issued to the Executive in writing, in which event the Executive shall be
entitled to receive such bonuses in accordance with such criteria.
(c) Benefits. The Executive shall be entitled to participate in all
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employee benefit plans which the Company provides or may establish from time to
time for the benefit of its employees, including, without limitation, group
life, medical, surgical, dental and other health insurance, short and long-term
disability, deferred compensation, profit-sharing and similar plans. The
Executive shall also be entitled to one hundred eighty four (184) hours of paid
leave per year of employment, plus sick leave in accordance with standard
Company policy. Two-thirds of any unused portion of such paid leave shall be
considered to be vacation and, therefore, shall be paid to the Executive upon
his cessation of employment with the Company. The Company will provide term life
insurance for the Executive with benefits equal to his annual Salary, up to a
maximum of four hundred thousand dollars ($400,000). The Company may also
purchase one or more "key man" insurance policies on the Executive's life, each
of which will be payable to and owned by the Company. The Company, in its sole
discretion, may select the amount and type of key man life insurance purchased,
and the Executive will have no interest in any such policy. The Executive will
cooperate with the Company in securing this key man insurance, by submitting to
all required medical examinations, supplying all information and executing all
documents required in order for the Company to secure the insurance.
(d) Stock Options. In the sole discretion of the Board, the Company may
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from time to time issue the Executive stock option grants under the Company's
stock option plan and a stock option agreement, in which event the Executive
shall be entitled to such options in accordance with such plan and agreement(s),
subject however to the provisions of this Agreement regarding stock options.
(e) Expenses. The Company shall pay or reimburse the Executive for all
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reasonable out-of-pocket expenses actually incurred by the Executive during the
Term in performing
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services hereunder, provided that the Executive properly accounts for such
expenses in accordance with the Company's policies. The Company shall pay the
Executive an automobile allowance of no less than five hundred dollars ($500)
per month through normal payroll procedures, and such allowance shall be
reported as income on the Executive's year-end W-2 form. The Executive shall be
responsible for submitting automobile expense reimbursement requests to the
extent he wishes to convert any portion of the allowance to an expense
reimbursement. The Company shall reimburse the Executive for cellular telephone
expenses associated with business use.
5. Termination and Severance; Certain Events.
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(a) Termination by the Company for Cause. Notwithstanding anything to the
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contrary in this Agreement, the Company may terminate the Executive's employment
for Cause at any time, upon written notice to the Executive setting forth in
reasonable detail the nature of such Cause. For purposes of this Agreement,
"Cause" is defined as (i) the Executive's continued failure to perform his
duties (other than due to physical incapacity or illness) after thirty (30)
days' written notice and opportunity to cure; (ii) the Executive's conviction of
any felony; (iii) the Executive's material misrepresentation of his professional
qualifications; (iv) willful or reckless conduct by the Executive injurious to
the Company or any Affiliate; or (v) the Executive's commission of fraud or
malfeasance. Upon the termination for Cause of the Executive's employment, the
Company and its Affiliates shall have no further obligation or liability to the
Executive other than for Salary earned prior to the date of termination and any
accrued but unused vacation.
(b) Termination by the Company Without Cause. Notwithstanding anything to
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the contrary in this Agreement, the Executive's employment hereunder may be
terminated at any time without Cause by the Company upon fourteen (14) days'
written notice to the Executive, provided, however, that if the Company
terminates the Executive's employment without Cause the Company shall (i) pay
the Executive on the effective date of termination all earned and unpaid Salary,
earned and unpaid bonuses, and accrued and unused vacation; (ii) continue to pay
the Executive the Salary and shall provide medical, life and disability
coverage, under the same conditions as exist at the time of termination, for a
six (6) month period beginning on the effective date of the termination; and
(iii) notwithstanding anything to the contrary in any stock option agreement,
any unvested stock options granted to the Executive shall accelerate and vest in
full on the effective date of termination, and the Executive may exercise such
options at any time up to two-hundred and seventy (270) days after the effective
date of termination of his employment. As a condition of receiving such benefits
pursuant to this Agreement, the Executive shall execute and deliver to the
Company prior to his receipt of such benefits a general release substantially in
the form attached hereto as Exhibit A, provided the Company executes such
release and delivers an executed counterpart to the Executive. Notwithstanding
anything to the contrary in this Section 5(b), if the termination constitutes a
Termination Without Cause Upon Change in Control, then the Executive shall
receive the benefits set forth in Section 5(d) below rather than as set forth in
this Section 5(b).
(c) Termination by the Executive. Notwithstanding anything to the contrary
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in this Agreement, the Executive may terminate his employment hereunder upon
thirty (30) days
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written notice to the Company provided that the Company may pay the Executive
his Salary in lieu of any portion of such notice period. The Executive may also
terminate his employment hereunder after giving the Company written notice no
more than thirty (30) days after the occurrence of an event which constitutes
Good Reason, in which event the Company shall (i) pay the Executive on the
effective date of termination all earned and unpaid Salary, earned and unpaid
bonuses, and accrued and unused vacation; (ii) continue to pay the Executive the
Salary and shall provide medical, life and disability coverage, under the same
conditions as exist at the time of termination, for a six (6) month period
beginning on the effective date of the termination, provided the Company
executes such release and delivers an executed counterpart to the Executive; and
(iii) notwithstanding anything to the contrary in any stock option agreement,
any unvested stock options granted to the Executive shall accelerate and vest in
full on the effective date of termination, and the Executive may exercise such
options at any time up to two-hundred and seventy (270) days after the effective
date of termination of his employment. As a condition of receiving such benefits
pursuant to this Agreement, the Executive shall execute and deliver to the
Company prior to his receipt of such benefits a general release substantially in
the form attached hereto as Exhibit A, provided the Company shall execute such
release and deliver an executed counterpart to the Executive. Notwithstanding
anything to the contrary in this Section 5(c), if the Executive terminates his
employment for Good Reason Upon Change in Control, then the Executive shall
receive the benefits set forth in Section 5(d) below rather than as set forth in
this Section 5(c).
(d) Termination By Company or Executive After Change in Control.
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Notwithstanding anything to the contrary in this Agreement, in the event of a
Termination Without Cause Upon Change in Control, or termination by the
Executive for Good Reason Upon Change in Control, the Company shall provide the
Executive the following benefits: (i) all earned and unpaid Salary and bonuses;
(ii) all accrued and unused vacation; (iii) a lump sum payment equal to 2.99
times the Executive's average annual cash compensation during the previous five
(5) years (or, if the Executive has been employed by the Company for a shorter
period, then the average during such shorter period, with the first year's base
salary annualized if the Executive was employed less than one (1) year); (iv)
notwithstanding anything to the contrary in any stock option agreement, upon the
Executive acknowledging in a signed writing the surrender of all his rights to
vested and unvested stock options granted to him by the Company, a lump sum
equal to the difference between the exercise price of such stock options and the
higher of (x) the fair market value of the option shares on the effective date
of the termination, or (y) the highest effective price paid for the Company's
common stock by any acquirer in connection with the Change in Control; (v)
medical, life and disability coverage for a period of twelve (12) months after
the effective date of the termination, or until the Executive receives
comparable coverage from another employer, whichever occurs first; and (vi) all
accrued retirement and deferred compensation plans vest in full. Items (i)
through (iv) shall be paid to the Executive within twenty (20) days after the
effective date of the termination. As a condition of receiving such benefits
pursuant to this Agreement, the Executive shall execute and deliver to the
Company prior to his receipt of such benefits a general release substantially in
the form attached hereto as Exhibit A, provided the Company shall execute such
release and deliver an executed counterpart to the Executive.
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(e) Death. In the event of the Executive's death during the Term of this
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Agreement, the Executive's employment hereunder shall immediately and
automatically terminate, and the Company shall (i) pay the Executive's estate or
beneficiaries within a reasonable period after the effective date of termination
all earned, unpaid Salary, all earned, unpaid bonuses and all accrued unused
vacation; and (ii) notwithstanding anything to the contrary in any stock option
agreement, any unvested stock options granted to the Executive shall accelerate
and vest in full on the effective date of termination, and the recipients of
such benefits may exercise such options at any time up to two-hundred and
seventy (270) days after the effective date of termination of the Executive's
employment. As a condition of receiving such benefits pursuant to this
Agreement, the recipient(s) of benefits under this subsection shall execute and
deliver to the Company prior to receipt of such benefits a general release
substantially in the form attached hereto as Exhibit A, provided the Company
shall execute such release and deliver an executed counterpart to such
recipient(s).
(e) Disability. Notwithstanding anything to the contrary in the Agreement,
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the Company may terminate the Executive's employment hereunder, upon written
notice to the Executive, in the event that the Executive becomes disabled during
the Term through any condition of either a physical or psychological nature and,
as a result, is, with or without reasonable accommodation, unable to perform the
essential functions of the services contemplated hereunder for (a) a period of
ninety (90) consecutive days, or (b) for shorter periods aggregating one hundred
twenty (120) days during any twelve (12) month period during the Term. Any such
termination shall become effective upon mailing or hand delivery of notice that
the Company has elected its right to terminate under this subsection 5(f), and
the Company shall (i) pay the Executive on the effective date of termination all
earned, unpaid Salary; (ii) pay the Executive on the effective date of
termination all earned, unpaid bonuses; (iii) pay the Executive on the effective
date of termination all accrued unused vacation; (iv) continue to pay the
Executive the Salary and shall provide medical, life and disability coverage,
under the same conditions as exist at the time of termination, for a six (6)
month period beginning on the effective date of the termination, and (v)
notwithstanding anything to the contrary in any stock option agreement, any
unvested stock options granted to the Executive shall accelerate and vest in
full on the effective date of termination, and the Executive may exercise such
options at any time up to two-hundred and seventy (270) days after the effective
date of termination of his employment. As a condition of receiving such benefits
pursuant to this Agreement, the Executive shall execute and deliver to the
Company prior to his receipt of such benefits a general release substantially in
the form attached hereto as Exhibit A, provided the Company shall execute such
release and deliver an executed counterpart to the Executive.
(f) Certain Events. Notwithstanding anything to the contrary in any stock
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option plan or agreement, in the event of a Change in Control of the Company, or
Affiliate by which the Executive is employed, all unvested stock options in the
Company granted to the Executive shall accelerate and vest in full upon the
Change in Control. As a condition of the foregoing benefit, the Executive agrees
that, if so requested by the Company, or such Affiliate, prior to the Change in
Control, he shall continue to be employed by the Company or such Affiliate for a
period of one (1) year, subject to all of the other terms and conditions of this
Agreement, and if he fails to satisfy such obligation:
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(A) He shall pay to the Company as liquidated damages a sum equal to
the difference between:
(i) the exercise price of any stock options that vested
pursuant to this Section 5(f) ("Section 5(f) Options") and
were exercised by Executive prior to termination of his
employment; and
(ii) the higher of (x) the fair market value of the option
shares on the effective date of the Change in Control, (y)
the highest effective price paid for the Company's common
stock by any acquirer in connection with the Change in
Control, or (z) the price at which those shares were sold by
or on behalf of Executive; and
(B) All unexercised Section 5(f) Options shall immediately expire upon
the termination of his employment.
As a further condition of the foregoing benefit, the Executive shall execute and
deliver to the Company prior to his receipt of such benefit a general release of
claims up to the date of the Change in Control, substantially in the form
attached hereto as Exhibit A, provided the Company shall execute such release
and deliver an executed counterpart to the Executive.
(g) Tax Deductability. If it is determined by the Company or the Internal
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Revenue Service that any payment or benefit received or deemed received by the
Executive from the Company (pursuant to this Agreement or otherwise) is or will
become subject to any excise tax under Section 4999 of the Internal Revenue
Code, and, therefore, that the Company will not be entitled to a federal tax
deduction in connection with such payments and benefits or any portion thereof,
then such payments and/or benefits shall be reduced, in a form and amount agreed
to by the parties in good faith, in the amount necessary to allow the Company a
federal tax deduction in connection with all payments and benefits provided to
the Executive.
6. Choice of Law.
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The validity, interpretation and performance of this Agreement shall be
governed by, and construed in accordance with, the internal law of Maryland,
without giving effect to conflict of law principles.
7. Miscellaneous.
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(a) Assignment; Delegation. The Executive acknowledges and agrees that the
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rights and obligations of the Company under this Agreement may be assigned by
the Company to any successors in interest. The Executive further acknowledges
and agrees that the Company may delegate performance of its obligations to any
Affiliate provided that the Company shall retain liability for any breach of its
obligations under this Agreement. The Executive further acknowledges and agrees
that this Agreement is personal to the Executive and that the Executive may not
assign or delegate any rights or obligations hereunder.
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(b) Withholding. All payments required to be made by the Company to the
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Executive under this Agreement shall be subject to withholding taxes, social
security and other payroll deductions in accordance with the Company's policies
applicable to employees of the Company at the Executive's level.
(c) Entire Agreement. This Agreement, the Executive's employee
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nondisclosure/noncompetition agreement with the Company, and any stock option
agreement(s) between the parties, set forth the entire agreement between the
parties on the subject matter contained herein and supersede any prior
communications, agreements and understandings, written or oral, with respect to
the terms and conditions of the Executive's employment.
(d) Amendments. Any attempted modification of this Agreement will not be
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effective unless signed by an officer of the Company and the Executive.
(e) Waiver of Breach. The Executive understands that a breach of any
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provision of this Agreement may only be waived by an officer of the Company. The
waiver by the Company of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach.
(f) Severability. If any provision of this Agreement should, for any
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reason, be held invalid or unenforceable in any respect by a court of competent
jurisdiction, then the remainder of this Agreement, and the application of such
provision in circumstances other than those as to which it is so declared
invalid or unenforceable, shall not be affected thereby, and each such provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
(g) Notices. Any notices, requests, demands and other communications
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provided for by this Agreement shall be in writing and shall be effective when
delivered (i) in hand by private messenger, or (ii) by a nationally known and
reputable overnight mail service, as follows (or to such other address as either
party shall designate by notice in writing to the other in accordance herewith):
If to the Company:
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxxx, XX 00000
Attn: CEO
With a copy to General Counsel
If to Executive:
__________________________
__________________________
__________________________
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(h) Survival. The Executive and the Company agree that certain provisions
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of this Agreement shall survive the expiration or termination of this Agreement
and the termination of the Executive's employment with the Company. Such
provisions shall be limited to those within this Agreement which, by their
express and implied terms, obligate either party to perform beyond the
termination of the Executive's employment or termination of this Agreement.
(i) Arbitration of Disputes. Any controversy or claim arising out of this
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Agreement or any aspect of the Executive's relationship with the Company
including the cessation thereof shall be resolved by arbitration in accordance
with the then existing Employment Dispute Resolution Rules of the American
Arbitration Association, in Washington, D.C., and judgment upon the award
rendered may be entered in any court having jurisdiction thereof. The parties
shall split equally the costs of arbitration, except that each party shall pay
its own attorneys' fees. The parties agree that the award of the arbitrator
shall be final and binding.
(j) Rights of Other Individuals. This Agreement confers rights solely on
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the Executive and the Company. This Agreement is not a benefit plan and confers
no rights on any individual or entity other than the undersigned.
(k) Headings. The parties acknowledge that the headings in this Agreement
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are for convenience of reference only and shall not control or affect the
meaning or construction of this Agreement.
(l) Advice of Counsel. The Executive and the Company hereby acknowledge
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that each party has had adequate opportunity to review this Agreement, to obtain
the advice of counsel with respect to this Agreement, and to reflect upon and
consider the terms and conditions of this Agreement. The parties further
acknowledge that each party fully understands the terms of this Agreement and
has voluntarily executed this Agreement. The Company shall pay the legal fees
and costs incurred by the Executive in connection with the negotiation and
preparation of this Agreement, upon the presentation of invoices in appropriate
form.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement to be
made effective as of the Effective Date.
EXECUTIVE CREDIT MANAGEMENT SOLUTIONS, INC.
/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
______________________________________ __________________________________
PRINT NAME
Title: CEO/President
Xxxxxx Xxxxxxxx
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EXHIBIT A
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made
and entered into this ____ day of _____, _____, by and between Credit Management
Solutions, Inc. (hereinafter the "Company" or "Employer") and [EMPLOYEE NAME]
("Employee") (hereinafter collectively referred to as the "Parties"), and is
made and entered into with reference to the following facts.
RECITALS
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WHEREAS, Employee was hired by the Company on or about ________, as a
____________; and
WHEREAS, the Company and Employee have agreed to terminate their
employment relationship effective ______, ____; and
WHEREAS, the Parties have entered into a written employment agreement,
dated _________ (the "Employment Agreement"), under which Employee is entitled
to certain severance benefits conditioned upon his/her execution of this
Agreement; and
WHEREAS, the Parties each desire to resolve any potential disputes
which exist or may exist arising out of Employee's employment with the Company
and/or the termination thereof.
NOW THEREFORE, in consideration of the covenants and promises
contained herein, the Parties hereto agree as follows:
AGREEMENT
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1. Agreement By the Employee. In exchange for the payments described
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in paragraph 2 below, Employee agrees to the following:
(a) that his/her employment with the Company is terminated
effective _________, ____ (hereinafter the "Termination
Date"); and
(b) to be bound by the terms of this entire Agreement.
2. Agreement By the Company. In exchange for Employee's agreement to
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be bound by the terms of this entire Agreement, including but not limited to the
Release of Claims in paragraph 3, the Company agrees to provide Employee with a
severance benefits as provided for in the Employment Agreement.
Employee acknowledges that, absent this Agreement, s/he has no legal,
contractual or other entitlement to the consideration set forth in this
paragraph and that the amount set forth in this paragraph constitute valid and
sufficient consideration for Employee's release of claims and other obligations
set forth herein.
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3. Release of Claims.
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(a) Employee hereby expressly waives, releases, acquits and
forever discharges the Company and its divisions, subsidiaries, affiliates,
parents, related entities, partners, officers, directors, shareholders,
investors, executives, managers, employees, agents, attorneys, representatives,
successors and assigns (hereinafter collectively referred to as "Releasees"),
from any and all claims, demands, and causes of action which Employee has or
claims to have, whether known or unknown, of whatever nature, which exist or may
exist on Employee's behalf from the beginning of time up to and including the
date of this Agreement. As used in this paragraph 3, "claims," "demands," and
"causes of action" include, but are not limited to, claims based on contract,
whether express or implied, fraud, stock fraud, defamation, wrongful
termination, estoppel, equity, tort, retaliation, intellectual property,
personal injury, spoliation of evidence, emotional distress, public policy, wage
and hour law, statute or common law, claims for severance pay, claims related to
stock options and/or fringe benefits, claims for attorneys' fees, vacation pay,
debts, accounts, compensatory damages, punitive or exemplary damages, liquidated
damages, and any and all claims arising under any federal, state, or local
statute, law, or ordinance prohibiting discrimination on account of race, color,
sex, age, religion, sexual orientation, disability or national origin, including
but not limited to, the Age Discrimination in Employment Act, Title VII of the
Civil Rights Act of 1964 as amended, the Americans with Disabilities Act, the
Family and Medical Leave Act or the Employee Retirement Income Security Act.
(b) The Company and its divisions, subsidiaries, affiliates,
parents, related entities (hereinafter referred to as company), hereby expressly
waive, release, acquit and forever discharge Employee and his agents, attorneys,
representatives, successors, heirs and assigns (hereinafter collectively
referred to as "Employee Releasees"), from any and all claims, demands, and
causes of action which company has or claims to have, whether known or unknown,
of whatever nature, which exist or may exist on company's behalf from the
beginning of time up to and including the date of this Agreement. As used in
this paragraph 3, "claims," "demands," and "causes of action" include, but are
not limited to, claims based on contract, whether express or implied, fraud,
stock fraud, defamation, wrongful termination, estoppel, equity, tort,
retaliation, intellectual property, personal injury, spoliation of evidence,
emotional distress, public policy, wage and hour law, statute or common law,
claims for severance pay, claims related to stock options and/or fringe
benefits, claims for attorneys' fees, vacation pay, debts, accounts,
compensatory damages, punitive or exemplary damages, liquidated damages, and any
and all claims arising under any federal, state, or local statute, law, or
ordinance prohibiting discrimination on account of race, color, sex, age,
religion, sexual orientation, disability or national origin, including but not
limited to, the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964 as amended, the Americans with Disabilities Act, the Family
and Medical Leave Act or the Employee Retirement Income Security Act; provided,
however, that, this release does not include any claim, demand or cause of
action arising out of Executive's malfeasance, fraud, embezzlement, intentional
torts, breach of his duties under his employee nondisclosure/noncompetition
agreement with the Company, violation of any other duties with respect to
confidential or proprietary information or intellectual property (including
without limitation patents, copyrights, trade secrets and trademarks),
noncompetition, nonsolicitation or loyalty, or violation of the Company's
employee policies, including without limitation its Human Resources and
securities trading policies.
4. Last Date of Employment. It is understood and agreed that
-----------------------
Employee's last date of employment with Employer is _________, ____.
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5. Receipt of Wages and Other Compensation. Employee acknowledges
---------------------------------------
and agrees that, prior to his/her execution of this Agreement, s/he has received
payment for all wages, salary, bonuses, accrued vacation, and all other
compensation owed to Employee by the Company.
6. Company Property/Proprietary Information. Employee agrees to
----------------------------------------
continue to abide by the terms of his employee nondisclosure/noncompetition
agreement with the Company, the terms of which are incorporated herein by
reference.
7. Acceptance of Agreement/[Revocation]. This Agreement was received
------------------------------------
by Employee on ______, ____. Employee may accept this Agreement by returning a
signed original to the Company. This Agreement shall be withdrawn if not
accepted in the above manner on or before _____.
8. Non-Admission of Liability. The Company denies any wrongdoing
--------------------------
whatsoever in connection with its dealings with Employee, including but not
limited to Employee's employment and termination. It is expressly understood and
agreed that nothing contained in this Agreement shall constitute or be treated
as an admission of any wrongdoing or liability on the part of the Company or the
Employee.
9. No Filing of Claims. Employee represents and warrants that s/he
-------------------
does not presently have on file, and further represents and warrants that s/he
will not hereafter file, any claims, charges, grievances or complaints against
any of the Releasees (defined above) in or with any administrative, state,
federal or governmental entity, agency, board or court, or before any other
tribunal or panel or arbitrators, public or private, based upon any actions or
omissions by the Releasees occurring prior to the date of this Agreement.
10. Ownership of Claims. Employee represents and warrants that s/he
-------------------
is the sole and lawful owner of all rights, title and interest in and to all
released matters, claims and demands referred to herein. Employee further
represents and warrants that there has been no assignment or other transfer of
any interest in any such matters, claims or demands which she may have against
the Releasees.
11. Confidentiality. Employee understands and agrees that this
---------------
Agreement, and the matters discussed in negotiating its terms, are entirely
confidential. It is therefore expressly understood and agreed that Employee will
not reveal, discuss, publish or in any way communicate any of the terms, amount
or fact of this Agreement to any person, organization or other entity, with the
exception of his/her immediate family members and professional representatives,
unless required by subpoena or court order. Employee further agrees that s/he
will not, at any time in the future, make any statements to any third parties
that disparage any of the Releasees personally or professionally.
12. Tax Indemnification. It is understood and agreed that Employee is
-------------------
liable for all tax obligations, if any, with respect to the settlement payments
provided for herein. Employee agrees to indemnify, defend and hold harmless
Employer from any and all taxes, assessments, penalties, loss, costs, reasonable
attorneys' fees, expenses or interest payments that Employer may at any time
incur by reason of any demand, proceeding, action or suit brought against
Employer arising out of or in any manner related to any local, state or federal
taxes allegedly due from Employee in connection with this Agreement; provided
(a) Employer promptly notifies Employee of any such claim, demand or cause of
action against the Company, and (b) keeps Employee fully informed of all
material facts and events with respect to such proceedings (to the extent such
information does not waive any privileges).
13. Maryland Law Applies. This Agreement, in all respects, shall be
--------------------
interpreted, enforced and governed by and under the laws of the State of
Maryland. Any and all actions relating to this Agreement shall be filed and
maintained in the federal and/or state courts located in the State of
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Maryland, and the parties consent to the jurisdiction of such courts. In any
action arising out of this Agreement, or involving claims barred by this
Agreement, the prevailing party shall be entitled to recover all costs of suit,
including reasonable attorneys' fees.
14. Successors and Assigns. The Parties expressly understand and
----------------------
agree that this Agreement, and all of its terms, shall be binding upon their
representatives, heirs, executors, administrators, successors and assigns.
15. Consultation with Counsel. Employee acknowledges that s/he has
-------------------------
been advised to consult with legal counsel of her choice prior to execution and
delivery of this Agreement.
16. Integration. Except as otherwise specifically provided for, this
-----------
Agreement constitutes an integrated, written contract, expressing the entire
agreement between the Parties with respect to the subject matter hereof. In this
regard, Employee represents and warrants that s/he is not relying on any
promises or representations which do not appear written herein. Employee further
understands and agrees that this Agreement can be amended or modified only by a
written agreement, signed by all of the Parties hereto.
17. Counterparts. This Agreement may be executed in separate
------------
counterparts and by facsimile, and each such counterpart shall be deemed an
original with the same effect as if all Parties had signed the same document.
18. Headings. The headings in each paragraph herein are for
--------
convenience of reference only and shall be of no legal effect in the
interpretation of the terms hereof.
19. Severability. If any provision in this Agreement is held to be
------------
invalid, the remainder of this Agreement shall not be affected by such a
determination.
20. Voluntary Agreement. EMPLOYEE UNDERSTANDS AND AGREES THAT S/HE
-------------------
MAY BE WAIVING SIGNIFICANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND
REPRESENTS THAT S/HE HAS ENTERED INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY,
WITH A FULL UNDERSTANDING OF AND IN AGREEMENT WITH ALL OF ITS TERMS.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the dates provided below.
DATED: _____________________, ____ CREDIT MANAGEMENT SOLUTIONS, INC.
By: ________________________
Its: _______________________
DATED: _____________________, ____ [EMPLOYEE NAME]
_____________________________
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