Exhibit 10.11
RELEASE AND SETTLEMENT AGREEMENT
WHEREAS, XXXXXXX X. XXXXXX'x employment has been severed with PRIMIS, INC.,
formerly known as PREMIER APPRAISALS, INC. ("Company") as of January 25, 1999;
WHEREAS, XXXXXXX X. XXXXXX ("Xxxxxx") now wants to settle, compromise, and
resolve any and all differences, disputes, disagreements, or claims that have
been or could have been asserted, or that he has had or may have, against the
Company and its affiliated and associated corporations, expressly including but
not limited to the Company and its predecessors, successors, and assigns, all
present and former stockholders, officers, directors, employees, attorneys and
agents of the Company (collectively, "Employer");
THEREFORE, for and in consideration for the sum set forth below, Xxxxxx for
himself and for his heirs, executors, administrators, successors, assigns, and
agents, and Company agree as follows:
1. Company hereby agrees to: (1) pay to Xxxxxx the total sum of $178,750 in
26 equal payments of $6,875 each, less withholdings, consistent with the
Company's customary payroll practices on the 15th day and last day of each month
through and including February 29, 2000, and maintain in effect at the Company's
expense Xxxxxx'x medical insurance coverage for that period; (2) purchase his
vested options to purchase 122,866 shares of the Company's stock at a value of
$4.00 per share less the $1 per share exercise price of such options or $368,598
in the aggregate, and (3) pay to Xxxxxx the total sum of $30,000 for any and all
consulting services rendered to Company after severance of his employment with
the Company for the purpose of settling and compromising all of the causes of
action he had or may have had arising out of his employment, consulting and
separation therefrom including, but not limited to, claims for unjust and
wrongful discharge, breach of contract, employment discrimination including
claims under
Title VII, on account of age under the federal Age Discrimination in Employment
Act of 1967, as amended, and on account of disability under the Americans with
Disabilities Act, under any state or local laws or regulations, including but
not limited to those pertaining to employment discrimination, wrongful
discharge, breach of contract (express or implied), retaliation, embarrassment,
humiliation, outrage, loss of dignity and defamation, mental anguish, and
reinstatement or future employment as well as for attorney's fees or other costs
(collectively, "Claims"), as well as for the purpose of obtaining Xxxxxx'x
commitments contained in Paragraphs 7, 8, 9 and 10 below.
2. Xxxxxx agrees to, and does hereby, waive, release, and forever discharge
Employer from the Claims that he has had or may have, excepting only any vested
rights under the Company's welfare benefit plans and/or Claims arising as a
result of Company's breach of this Release and Settlement Agreement.
3. Xxxxxx understands and agrees that Employer denies any liability
whatsoever in connection with said Claims. Xxxxxx also understands and agrees
that Employer denies that it wrongfully discharged or discriminated against,
injured or damaged him in any way.
4. Xxxxxx and his counsel agree to keep the fact and amount of this
settlement in strict confidence; Xxxxxx agrees not to disclose this document,
its contents, or subject matter to any person other than his wife, his attorney,
income tax preparer or accountant, without the prior written consent of J. Xxxxx
Xxxxxxx or except in response to a proper request through legal process.
Furthermore, to the extent Xxxxxx is permitted to disclose and does disclose
such information, he agrees to require, and does warrant, that the person
receiving such information shall maintain its confidentiality.
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5. Xxxxxx agrees that he will fully cooperate with Company, upon its
reasonable request, in the future should there be any need for his testimony or
assistance in connection with any matter related to his employment with Company
or matters he worked on while in its employ. Company agrees to pay Xxxxxx a fee
of $1,000 per day for all assistance and to reimburse Matttox for any and all
reasonable expenses related thereto.
6. Xxxxxx understands and agrees that his employment with Company has
permanently ceased for all purposes, and that he shall never seek employment or
reemployment with Company.
7. NON-COMPETITION:
Xxxxxx agrees that for the period commencing on January 25, 1999 and ending
on January 24, 2001 (a) within the areas where Xxxxxx worked within one (1) year
prior to his termination including all areas where Xxxxxx actively performed,
supervised or assisted in the Company's business, and (b) within any area where
customers of the Company, with whom Xxxxxx had material contact, were present
and doing business with the Company which areas are as follows: Alabama,
Arizona, California, Florida, Georgia, Maryland, North Carolina, Ohio, and
Virginia (the "Territory"), he shall not in any manner, directly or indirectly
or by assisting others, engage in any business in the Territory which is the
same or essentially the same as the business of the Company, as a manager,
supervisor, administrator, executive, senior or management level employee,
owner, proprietor, shareholder or consultant; provided that Xxxxxx shall not be
restricted for owning less than 5% of the outstanding shares of a company whose
shares are publically traded.
8. NON-SOLICITATION:
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Xxxxxx agrees that for a period commencing on January 25, 1999 and ending
on January 24, 2001, he shall not within the Territory solicit, directly or
indirectly, business from customers of the Company with which he had contact,
including actively-sought prospective customers, for the purposes of providing
products or services that are competitive with those provided by the Company.
Xxxxxx, for a period commencing on January 25, 1999 and ending on January
24, 2001, shall not directly or indirectly, aid or endeavor to solicit or induce
any of the Company's employees to leave their employment with the Company in
order to accept employment with Xxxxxx or another person, partnership,
corporation or other entity.
9. NON-DISCLOSURE; RETURN OF COMPANY PROPERTY:
At no time shall Xxxxxx divulge, furnish or make accessible to anyone any
conffdential information or data of the Company, or any confidential information
or data of any ofthe customers of the Company, or any other confidential aspect
of the business or products or services of the Company or its customers. Xxxxxx
hereby represents and warrants to the Company that he has turned over to the
Company all computer equipment and other tangible or intangible personal
property, including records, data, documents or information of any kind and in
any form relating in any way to the business of the Company, including any and
all copies of such materials; except for documents or copies thereof that may
relate to Xxxxxx personally such as employment agreements, stock option
agreements, performance reviews and the like. For purposes of this Release and
Settlement Agreement, the term Confidential Information shall not include
information that Xxxxxx can show by competent proof (i) was known to Xxxxxx
prior to disclosure by Company; (ii) was generally known to the public at the
time Company disclosed the information to Xxxxxx; (iii) became
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generally known to the public after disclosure by Company through no act or
omission of Xxxxxx; or (iv) was disclosed to Xxxxxx by a third party having a
bona fide right both to possess the information and to disclose the information
to Xxxxxx.
10. ENFORCEABILITY; INJUNCTIVE RELIEF:
Xxxxxx agrees that the Company may not be adequately compensated by damages
for a breach by Xxxxxx of any of the covenants contained in Sections 7, 8, and
9, and that, in addition to all other remedies, the Company shall be entitled to
injunctive relief and specific performance. In such event, the periods oftime
referred to in Sections 7 and 8 shall be deemed extended for a period equal to
the respective period during which Xxxxxx is in breach thereof, in order to
provide for injunctive relief and specific performance for a period equal to the
full term thereof. The covenants contained in Sections 7 and 8 shall be
construed as separate covenants, and if any court shall finally determine that
the restraints provided for in any such covenants are too broad as to the
geographic area, activity or time covered, said area, activity or time covered
may be reduced to whatever extent the court deems reasonable and such covenants
shall be enforced as to such reduced area, activity or time.
11. Xxxxxx shall indemnify and hold the Company harmless from any
liability, loss, damage, judgment, cost or expense (including reasonable
attorneys' fees and expenses) arising out of any claim or suit resulting from
Xxxxxx'x breach of any provision of this Release and Settlement Agreement or his
failure to perform a duty hereunder.
12. Employer agrees to, and does hereby, waive, release, and forever
discharge Xxxxxx from any claims or causes of action which it had or now has, or
may claim to have, by reason of any matter or thing arising from any cause
whatsoever at any time up to and including the date of this
Agreement, except
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for claims arising as a result of Xxxxxx'x breach of this Release and Settlement
Agreement. Employer shall indemnify and hold Xxxxxx harmless from any liability,
loss, damage, judgment, cost or expense (including reasonable attorney's fees
and expenses) arising out of any claim or suit resulting from (i) the Company's
breach of any provision of this Release and Settlement Agreement or its failure
to perform a duty hereunder or (ii) Xxxxxx'x guarantee of payment of any
American Express cards issued to the Company or Company employees. The Company
further represents and warrants that Xxxxxx is not obligated with respect to
such guaranty as of and after the date hereof.
13. Company understands and agrees that certain facts in respect of which
this Agreement is made may be hereafter known to be other than or different from
the facts now known or believed to be true. Company acknowledges that it has had
the opportunity to discover and acquire any and all facts with respect to this
Release and Settlement Agreement and Employer's claims, if any, and Company
hereby expressly accepts and assumes the risk that the facts may be different
than Employer understands or believes them to be and Company hereby agrees that
all terms, without limitation or exception, of this Release and Settlement
Agreement shall in all respects be effective, binding, and not subject to
termination or rescission because of any such difference in facts, without
regard to the nature of such facts or the reason or reasons why such facts were
not discovered until after the execution of this Release and Settlement
Agreement.
14. Xxxxxx understands and agrees that certain facts in respect of which
this Agreement is made may be hereafter known to be other than or different from
the facts now known or believed by him to be true. Xxxxxx acknowledges that he
has had the opportunity to discover and acquire any and all facts with respect
to this Release and Settlement Agreement and his claims, if any, and Xxxxxx
hereby expressly
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accepts and assumes the risk that the facts may be different than he understands
or believes them to be and he hereby agrees that all terms, without limitation
or exception, of this Release and Settlement Agreement shall in all respects be
effective, binding, and not subject to termination or rescission because of any
such difference in facts, without regard to the nature of such facts or the
reason or reasons why such facts were not discovered until after the execution
of this Release and Settlement Agreement.
15. Xxxxxx understands and agrees that all terms of this Release and
Settlement Agreement are contractual and not a mere recital, and Xxxxxx
represents and warrants that he is competent and possesses the full and complete
authority to covenant and agree as herein provided; Xxxxxx also understands,
agrees and represents that the covenants herein made and releases herein
executed may affect rights and liabilities of substantial extent and degree and
that the covenants and releases provided herein are in his best interest.
16. Company represents and warrants that it has full and complete authority
to covenant and agree as provided herein.
17. Should this Release and Settlement Agreement ever be held invalid or
unenforceable (in whole or in part) with respect to any particular claims or
circumstances, it shall remain fully valid and enforceable as to all other
claims and circumstances.
18. Xxxxxx represents and warrants that in negotiating and executing this
Release and Settlement Agreement, he has been advised to consult with an
attorney and has consulted with and been advised by competent counsel of his
choosing concerning the meaning and legal effect of each term and provision
ofthis Release and Settlement Agreement. Xxxxxx has carefully read this Release
and Settlement Agreement in its entirety, discussed it with his counsel, and
fully understands and agrees to its terms and
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provisions. Xxxxxx acknowledges that there are no other promises,
inducements, representations or agreements in connection with this agreement
other than those expressly set forth in writing herein, and Xxxxxx intends and
agrees that, except as expressly provided in Paragraph 2, this is a final and
binding release of the Claims, including any claim for employment discrimination
in violation ofthe federal Age Discrimination in Employment Act of 1967, as
amended, known or unknown, whether in law or in equity, which he had or now has,
or may claim to have, by reason of any matter or thing arising from any cause
whatsoever at any time up to and including the date of this Agreement.
19. As evidenced by the parties affixing their initials
hereon next to this Section 19, any controversy arising out of,
or relating to, this Agreement or any modification or extension
of this Agreement, including any claim for damages, recission, Parties
specific performance or other legal or equitable relief, shall be
settled by arbitration in the City of Atlanta, State of Georgia, Initials:
in accordance with the rules then obtaining of the American
Arbitration Association. The determination of the arbitrator when ________
made shall be binding upon all parties bound by the terms of this
Agreement. Judgment upon the award rendered by the arbitrator may ________
be entered in any court of competent jurisdiction. The foregoing
notwithstanding, the Company shall have the right to seek
injunctive relief from any court of competent jurisdiction in the
event of any breach or threatened breach of Sections 7, 8 or 9 of
this Agreement.
20. Xxxxxx acknowledges that he was given this Agreement on April __, 1999
and informed he had twenty-one (21) days to consider it and he has voluntarily,
after fully consulting with his counsel, entered into the terms hereof realizing
it is a full and complete settlement of all matters contained herein. The
parties further acknowledge that this Agreement may be revoked by Xxxxxx
within seven (7) days from
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the execution hereof and the Agreement shall not become effective and
enforceable until after the revocation period has ended.
IN WITNESS WHEREOF, the parties have executed this Release and Settlement
Agreement as of the _____ day of April, 1999.
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XXXXXXX X. XXXXXX
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WITNESS
PRIMIS, INC., formerly known as
PREMIER APPRAISALS, INC.
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By:
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Title:
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