Exhibit 10.22
SEPARATION AND RELEASE AGREEMENT
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This Separation and Release Agreement (the "Agreement"), dated this 26th
day of November, 2001, by and between Xxxxxxx X. Xxxxxx ("Xxxxxx") and Open Plan
Systems, Inc., a Virginia corporation (the "Company") provides:
1. Termination of Employment; Separation Benefits.
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Xxxxxx'x employment terminated effective November 26, 2001 ("Termination
Date") pursuant to Xxxxxx'x voluntary resignation. In consideration of Xxxxxx'x
acceptance of this Agreement, the Company shall pay to Xxxxxx a gross sum
equivalent to four (4) months' salary continuation at Employee's last regular
rate of pay. This sum shall be paid to Employee in regular installments over a
four-month period, each coinciding with the Company's regularly scheduled pay
days and commencing with the first pay day following the Effective Date of this
Agreement (as hereinafter defined). Xxxxxx hereby agrees that the Company will
deduct from such payment all withholding taxes and other payroll deductions that
the Company is required by law to make from wage payments to employees. Xxxxxx
hereby further agrees that the payments and performances described in this
Agreement are all that Xxxxxx shall be entitled to receive from the Company
except for vested qualified retirement benefits, if any, to which Xxxxxx may be
entitled under the Company's ERISA plans.
2. No Obligation to Make Payment under Normal Policies.
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Xxxxxx hereby agrees and acknowledges that the benefits set forth in the
first Paragraph of this Agreement are more than the Company is required to do
under its normal policies and procedures and that they are in addition to
anything of value to which Xxxxxx already is entitled.
3. Complete Release.
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Xxxxxx hereby knowingly and voluntarily releases and forever discharges the
Company, any related companies, and the former and current employees, officers,
agents, directors, shareholders, investors, attorneys, affiliates, successors
and assigns of any of them (the "Released Parties") from all liabilities,
claims, demands, rights of action or causes of action Xxxxxx had, has or may
have against any of the Released Parties, including but not limited to any
claims or demands based upon or relating to Xxxxxx'x employment with the Company
or the termination of that employment. This includes but is not limited to a
release of any rights or claims Xxxxxx may have under Title VII of the Civil
Rights Act of 1964, which prohibits discrimination in employment based on race,
color, national origin, religion or sex; the Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; the Age Discrimination in
Employment Act of 1967, which prohibits age discrimination in employment; the
Americans with Disabilities Act, which prohibits discrimination against
otherwise qualified disabled individuals; the Virginia Human Rights Act, which
is a state statute prohibiting, among other things, employment discrimination;
or any other federal, state or local laws or regulations prohibiting employment
discrimination. This also includes but is not limited to a release by Xxxxxx of
any claims for wrongful discharge, breach of contract, or any other statutory,
common law, tort or contract claim that Xxxxxx had, has or may have against any
of the Released Parties. This release covers both claims that Xxxxxx knows about
and those Xxxxxx may not know about.
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This release does not include, however, a release of Xxxxxx'x right, if
any, to payment of vested qualified retirement benefits under the Company's
ERISA plans and the right to continuation in Company medical plans as provided
by COBRA.
4. No Future Lawsuits.
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Xxxxxx promises never to file a lawsuit asserting any claims that are
released in Paragraph 3. Xxxxxx further agrees that, in the event he breaches
this Paragraph 4, he shall pay to the Company all of its expenses incurred as a
result of such breach, including but not limited to, reasonable attorney's fees
and expenses.
5. Disclaimer of Liability.
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This Agreement and the payments and performances hereunder are made solely
to assist Xxxxxx in making the transition from employment with the Company, and
are not and shall not be construed to be an admission of liability, an admission
of the truth of any fact, or a declaration against interest on the part of the
Company.
6. Confidential Information/Non-Solicitation
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X. Xxxxxx covenants and agrees that he shall not use, divulge, publish or
disclose to any person or organization, confidential information obtained by
Xxxxxx during the course of Xxxxxx'x employment or related to Xxxxxx'x cessation
of employment ("Confidential Information"). The Confidential Information
consists of the following: (a) the existence and terms of this Agreement itself;
(b) personal, financial, private or sensitive information concerning the
Company's executives, employees, customers and suppliers; (c) information
concerning the Company's sources of business contacts, business records,
customer lists or other client
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information, business documents and forms, customer contracts, pricing and
customer service requirements; (d) information concerning the Company's
formulas, designs, methods of business, trade secrets, technology, business
operations, business records and files; and (e) any other non-public information
which, if used, divulged, published or disclosed by Xxxxxx, would be reasonably
likely to provide a competitive advantage to a competitor or to cause any of the
Company's executives or employees embarrassment. Xxxxxx further agrees to return
immediately to the Company all of the Company's property, if any, in Xxxxxx'x
possession or under Xxxxxx'x control. Notwithstanding the restrictions contained
in this Subsection A, Xxxxxx shall be permitted to make necessary disclosures to
members of his immediate family or his attorneys and advisors concerning the
terms of this Agreement.
B. For a period of two (2) years from and after the date upon which
Xxxxxx'x employment with the Company ceases, Xxxxxx covenants and agrees that he
will not directly or indirectly, for himself or for the benefit of another:
(i) solicit any person or entity who, during the twelve month period
immediately preceding the date upon which Xxxxxx'x employment with the Company
ceased, paid or engaged the Company for products or services of any type or who
received the benefit of the Company's services ("Customer") to withdraw, curtail
or cancel his business with the Company;
(ii) do any other act which may result in the impairment of the
relationship between any Customer or supplier and the Company;
(iii) agree to perform or perform services of any type that the
Company can render for any Customer; or
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(iv) induce or influence, or attempt to induce or influence, any
person who is an employee, agent, independent contractor, partner, officer or
director of the Company to terminate his or her relationship with the Company
for the purpose of obtaining employment or otherwise contracting with Xxxxxx or
a competitor of the Company.
B. The parties hereto agree that given the nature of the positions held
by Xxxxxx with the Company, the covenants and restrictions set forth in
Subsections A and B above are reasonable and necessary for the protection of the
significant investment of the Company in developing, maintaining and expanding
its business. Accordingly, the parties hereto agree that in the event of any
breach by Xxxxxx of any of the provisions of Subsections A or B that monetary
damages alone will not adequately compensate the Company for its losses and
therefore it is entitled to injunctive relief. In addition, the Company is
entitled to recover from Xxxxxx all damages, including actual and consequential
damages, costs and expenses, including legal costs and actual attorney's fees,
incurred by it as a result of such breach.
7. Claim for Reinstatement.
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Xxxxxx agrees to waive and abandon any claim to reinstatement with the
Company. Xxxxxx further agrees not to apply for any position of employment
with the Company and agrees that this Agreement shall be sufficient
justification for rejecting any such application.
8. Statements Regarding Company and/or Employment.
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Xxxxxx agrees not to do or say anything that reasonably may be expected to
have the effect of criticizing or disparaging the Company, any director of the
Company, any of the Company's employees, officers or agents, or diminishing or
impairing the goodwill and
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reputation of the Company or the products and services it provides.
Xxxxxx further agrees not to assert that any current or former employee, agent,
director or officer of the Company has acted improperly or unlawfully with
respect to Xxxxxx or any other person regarding employment.
9. Other Promises.
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X. Xxxxxx agrees that, unless compelled by law, Xxxxxx shall not,
directly or indirectly, assist any person or entity in connection with any
potential or actual litigation against the Company or any other of the Released
Parties described in Paragraph 3 hereof.
X. Xxxxxx agrees that: (i) he shall not solicit Company proxies, or
participate in an election contest for Company directors or assist, counsel or
communicate with any other person in connection with any such proxy solicitation
or proxy contest; (ii) he shall not deposit Company voting shares in a voting
trust or subject Company shares to a voting agreement; (iii) he shall not
initiate or solicit shareholder proposals, and he shall not participate in,
assist, or support any effort to do so; and (iv) he shall not take, participate
in, or support any action to acquire or affect control of Company or to
encourage or assist any other person or entity to do so. However, nothing in
this Paragraph shall prohibit Xxxxxx from voting or selling any Company shares
that he owns on the date hereof.
10. Non-Release of Future Claims.
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This Agreement does not waive or release any rights or claims that Xxxxxx
may have under the Age Discrimination in Employment Act or other law which arise
after the date that Xxxxxx signs this Agreement.
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11. Period for Review and Consideration of Agreement.
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Xxxxxx understands that Xxxxxx has been given a period of twenty-one (21)
days to review and consider this Agreement before signing it. Xxxxxx further
understands that Xxxxxx may use as much of this 21-day period as Xxxxxx wishes
prior to signing.
12. Encouragement to Consult with Attorney.
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Xxxxxx is encouraged to consult with an attorney before signing this
Agreement. Xxxxxx represents that he has, in fact, done so.
13. Xxxxxx'x Right to Revoke Agreement.
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Xxxxxx may revoke this Agreement within seven (7) days of Xxxxxx'x signing
it. Revocation can be made by delivering a written notice of revocation to
Xxxxxx X. Xxxxxx, Xx. at Williams, Mullen, Xxxxx & Xxxxxxx, 0000 Xxxx Xxxx
Xxxxxx, X.X. Xxx 0000, Xxxxxxxx, Xxxxxxxx 00000. For this revocation to be
effective, written notice must be received by Xx. Xxxxxx no later than the close
of business on the seventh day after Xxxxxx signs this Agreement. If Xxxxxx has
not revoked the Agreement, the eighth (8/th/) day after Xxxxxx signs this
Agreement shall be the Effective Date for purposes of this Agreement.
14. Acknowledgment.
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Xxxxxx acknowledges that he has signed this Agreement freely and
voluntarily without duress of any kind.
15. Entire Agreement.
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This Agreement contains the entire understanding of Xxxxxx and the Company
concerning the subjects it covers and it supersedes all prior understandings and
representations. The
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Company has made no promises to Xxxxxx other than those set forth herein. This
Agreement may not be modified or supplemented except by a subsequent written
agreement signed by all parties.
16. Successorship.
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It is the intention of the parties that the provisions hereof be binding
upon the parties, their employees, affiliates, agents, heirs, successors and
assigns forever.
17. Governing Law.
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This Agreement shall be governed by the laws of the Commonwealth of
Virginia.
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XXXXXX ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND IS
VOLUNTARILY ENTERING INTO IT. PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
12-17-01 /s/ Xxxxxxx X. Xxxxxx
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Date Xxxxxxx X. Xxxxxx
COMMONWEALTH OF VIRGINIA
City/County of Chesterfield, to-wit:
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Subscribed and sworn to me this 17 day of December, 2001, by Xxxxxxx X. Xxxxxx.
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/s/ Xxxxxx X. Xxxxxxxx
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Notary Public
My commission expires: 8/31/2003
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OPEN PLAN SYSTEMS, INC.
12/17/01 By: /s/ Xxxxxx X. Xxxxxx Xx.
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Date
Its: President & CEO
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COMMONWEALTH OF VIRGINIA
City/County of Henrico, to-wit:
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Subscribed and sworn to me this 17/th/ day of Sept., 2001, by Xxxxxx Xxxxxx.
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/s/ Xxxxx Xxxxxxxx
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Notary Public
My commission expires: 12/31/2001
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