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EXHIBIT 10.22
RETIREMENT AND POST-EMPLOYMENT AGREEMENT
THIS RETIREMENT AND POST-EMPLOYMENT AGREEMENT (the "Agreement") is
made, effective as of the close of business on the 15th day of July, 1996 (the
"Effective Date"), by and between XXXXXXX X. XXXX, III, a citizen and resident
of North Carolina (hereinafter "Xxxx"), and BROADWAY & SEYMOUR, INC., a North
Carolina corporation having its principal place of business in Charlotte, North
Carolina (hereinafter "BSI"). The parties hereto acknowledge as follows:
W I T N E S S E T H:
WHEREAS, Xxxx has been employed by BSI as Chairman of the Board of
Directors; and
WHEREAS, Xxxx intends to retire from employment as of April 30, 1997
(the "Retirement Date"); and
WHEREAS, Xxxx intends to continue as a member of the Board of
Directors of BSI through December 31, 1996; and
WHEREAS, the parties have voluntarily entered into this Agreement for
the purpose of eliminating and resolving all matters arising out of Xxxx'x
employment with BSI, effecting the termination of Xxxx'x employment, providing
certain specified benefits for Xxxx, memorializing the parties' agreement
concerning Xxxx'x post-employment relationship with BSI, and finally, fully and
completely resolving amicably any and all matters actually or potentially in
controversy between them.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter made by Xxxx and BSI, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby expressly
acknowledged by the parties hereto, the parties agree as follows:
ARTICLE I
OBLIGATIONS OF BSI
Section 1.1 Payment through December 31, 1996. BSI shall pay Xxxx his
current salary, payable in semi-monthly installments of
$10,416.67, less required state and federal tax withholding
deductions, from the Effective Date through December 31, 1996.
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Section 1.2 Payment from January 1, 1997 through April 30, 1997. BSI
shall pay Xxxx one-half (1/2) of his current salary, payable
in semi-monthly installments of $5,208.33, less required state
and federal tax withholding deductions, from January 1, 1997
through April 30, 1997.
Section 1.3 Unemployment Compensation. BSI shall not contest any
application for unemployment compensation that Xxxx may elect
to file with the North Carolina Employment Security Commission
after the Retirement Date, but Xxxx understands and agrees
that the payments made under Sections 1.1 and 1.2 above are
wages in lieu of notice of discharge, and for the time period
during which such payments are made, Xxxx will not seek
unemployment compensation benefits.
Section 1.4 401(k) Profit Sharing. BSI shall distribute all sums which
Xxxx is entitled to receive under BSI's 401(k) Profit Sharing
Plan in accordance with Sections 5.1(a), 5.1(c), 5.4(a) and
5.4(c) of that Plan consistent with Xxxx'x employment
hereunder until the Retirement Date.
Section 1.5 Employee Stock Purchase Plan. BSI agrees that it shall
distribute all sums which Xxxx is entitled to receive under
the Broadway & Seymour, Inc. Employee Stock Purchase Plan, if
any, in accordance with Section 7.1(a) of that Plan consistent
with Xxxx'x employment hereunder until the Retirement Date.
Section 1.6 Restated 1985 Incentive Stock Option Plan. For the purposes
of the Broadway & Seymour, Inc. Restated 1985 Incentive Stock
Option Plan, pursuant to the terms hereof Xxxx shall continue
as an employee of the Company through the Retirement Date, and
Xxxx shall continue to vest in options and be permitted to
exercise any vested stock options during such period and
thereafter in accordance with, and in the manner set forth in,
such plan. If such stock options are not exercised within the
period set forth in such plan, they shall be terminated.
Unvested stock options shall, in any event, lapse as of the
April 30, 1997 to the extent set forth in such plan.
Section 1.7 Business Expenses Reimbursement. BSI shall not be responsible
for any business expenses incurred by Xxxx prior to the
Retirement Date, except those expenses for which properly
documented reimbursement requests have been made prior to the
Retirement Date. BSI shall not be responsible for any
business expenses incurred by Xxxx on or after the Retirement
Date except as specified in this Agreement or as otherwise
approved in advance by BSI.
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Section 1.8 City Club Membership. Effective January 1, 1997, BSI shall,
at its own expense, assign and transfer to Xxxx ownership of
the Charlotte City Club Executive Resident Membership
currently assigned to and used by Xxxx. Thereafter, Xxxx
shall be responsible for all charges (except for those
properly reimbursable by BSI as provided in Section 1.7 above)
and dues associated with such membership.
Section 1.9 Continued Indemnification. BSI shall take no action to amend
its Certificate of Incorporation or by-laws to reduce its
current obligations thereunder to defend and indemnify Xxxx.
BSI shall take no action to exclude Xxxx from coverage under
its existing insurance policy covering directors and officers
of BSI and any renewal thereof and shall renew coverage
thereof on substantially similar terms as now in force (to
include coverage of Xxxx on terms no less favorable than
currently provided under existing policies) to the extent such
renewal coverage is available on substantially similar terms,
including premiums therefor; provided, however, that in no
event shall the terms of such renewal coverage applicable to
Xxxx be less favorable than those applicable to the other
current officers and directors of BSI.
Section 1.10 Accrued Vacation Pay. On the Effective Date, BSI shall pay
Xxxx $10,416.67, less applicable withholding, in payment of
all unused vacation time accrued through the Effective Date.
Section 1.10 No Other Benefits. Other than what may be provided herein,
Xxxx acknowledges that Xxxx is not entitled to any employment
benefits from BSI after the Retirement Date.
ARTICLE II
OBLIGATIONS OF XXXX
Section 2.1 Retirement. Xxxx hereby resigns as an officer of BSI and as
an officer and director of any of its subsidiaries, effective
immediately, and as an employee of BSI and of any of its
subsidiaries as of the Retirement Date. Xxxx shall, from the
Effective Date through the Retirement Date, provide services
to BSI as requested by BSI in an amount not to exceed ten (10)
hours per month at such place and time as mutually agreed,
provided that Xxxx may provide such services by telephone and
entirely outside normal business hours. Xxxx may engage in
any other employment or business prior to the Retirement Date
not otherwise prohibited hereunder. Except as otherwise
provided herein, as of the Retirement Date, Xxxx shall not
have the right to participate in or receive any benefit under
any employee benefit plan of BSI, any fringe benefit plan
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of BSI, or any other plan, policy or arrangement of BSI
providing benefits or perquisites to employees of the Company
generally or individually.
Section 2.2 Service as Director. Xxxx hereby resigns as of the Effective
Date as Chairman of the Board of Directors. Xxxx agrees to
resign as a member of the Board of Directors effective
December 31, 1996; provided, however that Xxxx may resign his
Board membership at his option at any time and provided
further that Xxxx may be removed from the Board as provided in
BSI's by-laws.
Section 2.3 Release. In exchange for the payments set forth in Article I
above, and except as otherwise specifically provided to the
contrary in this Agreement, Xxxx, for himself and for his
heirs, executors, administrators, agents, and assigns for and
in consideration of the agreements contained in this
Agreement, hereby forever releases, acquits, remises,
quitclaims, and discharges BSI and its affiliated entities,
parents, subsidiaries, successors, assigns, and benefit plans
(except with respect to any vested benefit), and the officers,
directors, employees and agents thereof, of and from any and
all actions, causes of action, claims, demands, damages,
costs, expenses, attorney's fees and all other obligations of
any type and nature whatsoever, from, on account of, or in any
way arising out of any claims, matters, contracts,
relationships, or employment, whether existing now or at any
time in the past or future, other than (a) claims arising from
or relating to the enforcement of the Agreement, (b) rights of
ownership of any capital stock of BSI now or hereafter held by
Xxxx, (c) rights under any option agreement between BSI and
Xxxx, (d) rights with respect to BSI's obligation to defend
and indemnify him in accordance with the provisions of the
BSI's Certificate of Incorporation and by-laws, or any other
indemnification agreement, and (e) rights, if any, as an
insured party under any policy of insurance covering BSI's
directors or officers.
Except as otherwise specifically provided to the contrary in
the Agreement, it is agreed and covenanted that this Release
covers all claims which Xxxx may have had, may now have or
could hereafter have relating to any matter, cause or thing
whatsoever, specifically including, but not limited to, all
claims or demands arising out of or relating to the
relationships between Xxxx and BSI as employee, officer,
director and shareholder, including, but not limited to, all
claims which Xxxx has had or now has and which could have been
asserted under state or federal statute or law with respect to
all matters concerning or arising out of Xxxx'x relationships
with BSI as employee, officer, director or shareholder, and
including specifically, but not limited to, any and all claims
under or for breach of fiduciary duty, breach of contract,
fraud, negligent misrepresentation, negligence, breach of
criminal law, violation of federal or state unfair trade
practices law, violation of state or federal human
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rights, equal employment, wage hour, workers compensation,
pension or labor laws, rules or regulations, including the
Fair Labor Standards Act, the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. Section 621 et seq., Title
VII of the Civil Rights Act of 1964, as amended, the Family
and Medical Leave Act, ERISA, and the Americans with
Disabilities Act, and violation of any and all other federal,
state and local laws and regulations.
Section 2.4 Covenant Not To Xxx. Xxxx hereby waives his right to file,
and hereby agrees not to accept any relief or recovery from,
any lawsuit, charge, claim, complaint, or other proceeding,
whether an individual, joint or class action (collectively
"Legal Action") before any federal, state or local
administrative agency, court or other forum against BSI or any
of its parent, subsidiary or affiliated entities; provided,
however, that this Agreement shall not apply to preclude
Xxxx'x participation in legal action relating to any rights or
duties arising under this Agreement or under documents to be
executed or action to be taken pursuant to this Agreement.
Except as provided above and as prohibited by statute, in the
event that Xxxx institutes, is a party to, or joins
voluntarily as a member of a class any Legal Action against
BSI or any of its affiliated entities, he shall join in the
dismissal of the Legal Action or termination of his class
membership immediately upon presentation of this Agreement and
Xxxx shall reimburse BSI for all legal fees and expenses
incurred in defending Xxxx'x involvement in the Legal Action
and obtaining the dismissal of Xxxx therefrom except those
fees and expenses incurred by BSI where Xxxx is not a
voluntary party to the Legal Action.
Section 2.5 Agreement Not to Assist Litigation. Xxxx hereby agrees not to
in any way voluntarily assist any individual or entity in
commencing or prosecuting any action or proceeding, including
but not limited to, any administrative agency claims, charges
or complaints and/or any lawsuits against BSI, its officers or
directors, or its subsidiaries or affiliated entities, or
their officers or directors, or in any way voluntarily
participate or cooperate in any such actions or proceedings,
except (a) as this waiver is prohibited by statute, (b) in
accordance with lawful process issued by a court of competent
jurisdiction or other lawful authority, and (c) upon request
of a governmental entity or agency.
Section 2.6 Agreement to Provide Litigation Assistance. Xxxx agrees to
cooperate with and provide assistance to BSI and its legal
counsel in connection with any litigation (including
arbitration or administrative hearings) or investigation
affecting BSI, in which--in the reasonable judgment of BSI's
counsel--Xxxx'x assistance or cooperation is needed. Xxxx
shall, when requested by BSI, provide testimony or other
assistance and shall travel at BSI's request in order
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to fulfill this obligation; provided, however, that, in
connection with such litigation or investigation after the
Retirement Date, BSI shall attempt to accommodate Xxxx'x
schedule, shall provide him with reasonable notice in advance
of the times in which his cooperation or assistance is needed,
and shall reimburse Xxxx for any reasonable expenses incurred
in connection with such matters, as well as for any actual
lost wages suffered as a result from absence from employment.
Section 2.7 COBRA Continuation Coverage. Xxxx acknowledges and agrees
that continuation coverage under 26 U.S.C. Section 4980B
("COBRA") shall begin on the date hereof and that thereafter
Xxxx shall be eligible, upon his timely election and at his
own expense, to obtain health insurance coverage in accordance
with COBRA, provided, however, that BSI shall pay for Xxxx'x
health insurance coverage under COBRA commencing on the
Effective Date through and including the Retirement Date.
Xxxx hereby acknowledges that he has received the information
and forms necessary to obtain such coverage.
Section 2.8 Acknowledgement Concerning Vacation Pay. Xxxx agrees that he
shall waive all vacation time to which he is entitled under
BSI's policies through the Retirement Date such that Xxxx
agrees that, upon the Retirement Date and subject to receipt
of the payment set forth in Section 1.10 hereof, he shall not
have accrued any unused vacation time for which payment is due
from BSI.
Section 2.9 Acknowledgment Concerning All Compensation. Xxxx agrees and
acknowledges that, except as provided in this Agreement, Xxxx
is not entitled to any compensation or employment benefits
whatsoever, including, but not limited to, any bonus,
severance pay, accrued vacation pay or other compensation
under any BSI incentive plan, employee benefit plan or
agreement.
Section 2.10 Binding Nature. Xxxx'x signature on this Agreement reflects
his willingness to enter into and abide by the terms of this
Agreement. Xxxx acknowledges that he has been afforded an
opportunity to consider this Agreement and Xxxx further
acknowledges that he has been advised by BSI of his right to
consult with counsel concerning the effect of this Agreement,
and that he has carefully read the provisions of this
Agreement. Xxxx further represents that he knows and
understands the contents of this Agreement, that he intends to
be legally bound by this Agreement, and the release contained
herein, and that he is signing this Agreement, including the
release, of his own free will and without coercion.
Section 2.11 Further Acknowledgments. Xxxx acknowledges that:
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(a) he has received separate consideration under this
Agreement which is in addition to any other
compensation or other thing of value which Xxxx is
otherwise entitled to receive from BSI under any
agreement, Company policy or practice, or under
applicable law.
(b) he was given a period of twenty-one (21) days within
which to consider the terms of this Agreement;
(c) if he has executed this Agreement prior to the
expiration of such 21-day period, then he has done so
voluntarily and that he has waived the remainder of
such review period;
(d) he will have a period of seven (7) days following the
execution of this Agreement in which to revoke this
Agreement by giving written notice to BSI's President
of such revocation; provided, however, that if Xxxx
revokes this Agreement within this revocation period,
Xxxx agrees and acknowledges that he will have no
right to receive the payments or benefits set forth
in paragraph 1 above; and
(e) except as set forth in the immediately preceding
clause, this Agreement shall not become effective or
enforceable until the seven (7) day revocation period
described above has expired.
(f) he acknowledges and agrees that Xxxx does not believe
that BSI has discriminated against him in any manner
because of his race, sex, creed, color, religion,
national origin, age, marital status, sexual
preference, physical or mental disabilities or status
as a disabled or Vietnam- era veteran.
Section 2.12 Non-Disclosure of Confidential Information. Xxxx agrees that
he will maintain in confidence and will not, directly or
indirectly, use, publish or otherwise disclose to any
competitor or other third party, except as required by law,
any trade secrets, confidential, proprietary, and other
non-public information of a similar nature belonging to BSI or
any of its related or affiliated entities or to which BSI or
any of its related or affiliated entities has any rights,
except to the extent, if any, that any such information is or
becomes generally known or readily ascertainable by proper
means ("Confidential Information"), whether or not such
Confidential Information is in written or permanent form.
Such Confidential Information includes, but is not limited to,
proprietary technical and business information relating to any
non-public financial information, business plans or costs,
customers or customer lists, pricing data or other terms of
sales, customer requirements or buying history, customer
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contacts or prospective customers, formulas, patterns,
compilations, programs, devices, methods, techniques and
processes of BSI, or any of its related or affiliated
entities, subject to the same exception stated in the
preceding sentence. Xxxx'x obligations under this Agreement
with respect to Confidential Information shall extend to
information belonging to any client, vendor or customer of
BSI, or any of its related or affiliated entities, and their
agents and employees. Since BSI's business is national in
scope, there is no geographic limitation on Xxxx'x obligations
under this section. All duties and obligations set forth
herein shall be in addition to those which exist by common law
or statute.
Section 2.13 Return of Confidential Information. Xxxx agrees that he shall
return to BSI any and all documents containing Confidential
Information, whether in hard copy or electronic form,
including any copies thereof, which are in his possession or
under his control as of the Retirement Date.
Section 2.14 Return of Property. Xxxx agrees, upon the Retirement Date, to
the extent Xxxx has not done so previously, to immediately
return all documents, files, whether or not he was solely
responsible for same, keys, credit cards, keycards, programs,
software and discs, including, but not by way of limitation,
those programs, software and discs generated during his
employment with BSI, and all other items and equipment which
are the property of BSI.
Section 2.15 Noncompetition Clause. For the period commencing on the
Effective Date and continuing until the date two years after
the Retirement Date, Xxxx agrees not to, directly or
indirectly:
(a) solicit or attempt to solicit business from any
client or prospective client of BSI with whom Xxxx
has had direct or indirect association or otherwise
induce such clients or prospective clients to reduce,
terminate, restrict or otherwise alter their business
relationship with BSI in any fashion;
(b) become associated either as an owner, principal,
agent, manager, employee, partner, shareholder
(except for ownership of less than five percent of
the shares of a publicly traded company), director,
officer, consultant, or representative with any
business operation or any enterprise if such
operation competes with BSI in applying computer
systems and services to business, industry and
government;
(c) induce or attempt to induce any employee of BSI to
leave BSI for the purpose of engaging in a business
competitive with BSI;
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provided, however, that clauses (a) and (b) above shall not
restrict Xxxx from being employed by or associating or
affiliating with a venture capital investment firm that makes
investments in any enterprise that competes with BSI in
applying computer systems and services to business, industry
and government or provides services to or attempts to provide
services to clients or prospective clients of BSI which
activity has the result of causing such clients or prospective
clients to reduce, terminate, restrict or otherwise alter
their business relationship with BSI in any fashion so long as
Xxxx does not directly participate in the management of such
enterprise.
ARTICLE III
ADDITIONAL PROVISIONS
Section 3.1 Confidentiality. As an integral part of this Agreement, Xxxx
agrees that the terms of this Agreement and the circumstances
surrounding the execution of this Agreement shall be held
absolutely confidential and that he shall not disclose the
substance or terms of this Agreement to anyone other than his
immediate family, his tax adviser and his counsel.
Notwithstanding the above, Xxxx may answer truthfully any
inquiry about this Agreement which he is legally required to
answer whether by subpoena, court order or other lawful
process or as mutually agreed upon by the parties. Xxxx will
directly and fully inform BSI, however, concerning any
disclosures requested under this Agreement, along with the
entity making such request for disclosure, at the time of the
disclosure, and Xxxx shall specifically inform BSI of any
subpoena or other process which may require him to disclose
any matters in contravention of this provision.
Section 3.2 Non-Disparagement. Xxxx agrees that any time after the
execution of this Agreement and continuing after the
Retirement Date, he shall not in any way criticize or
disparage the performance, competency or ability of BSI or any
of its subsidiary or affiliated entities, or the officers,
directors, employees or agents of any of them to any other
person. In particular, Xxxx will not criticize or disparage
BSI's financial accounting or reporting policies or practices
nor allege or claim that he was discriminated against or
otherwise mistreated by BSI or any of its subsidiary or
affiliated entities at any time, except to the extent, if at
all, as may be required by legal process. Xxxx understands
and agrees that any breach by him of this provision shall be a
material breach of this Agreement and that BSI, in addition
to, and without waiving any other remedy, including injunctive
relief, shall have the right immediately to terminate all
payments under paragraph 1 of this Agreement and to require
Xxxx to return all payments made pursuant to this Agreement to
BSI.
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Section 3.3 No Admission of Liability. Xxxx understands and agrees that
the entry into this Agreement by BSI is solely for the purpose
of eliminating and resolving all matters arising out of Xxxx'x
employment with BSI, effecting the termination of Xxxx'x
employment, providing certain specified benefits for Xxxx,
memorializing the parties' agreement concerning Xxxx'x
post-employment relationship with BSI, and finally, fully and
completely resolving amicably any and all matters actually or
potentially in controversy between them and shall not be
construed as an admission by BSI of non-compliance with any
law or any other wrongdoing whatsoever.
Section 3.4 Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective
personal representatives, agents, attorneys, executors,
administrators, heirs, successors and assigns.
Section 3.5 Modification. This Agreement may not be modified or amended
except by an instrument in writing signed by the parties
hereto.
Section 3.6 Governing Law. This Agreement has been executed and delivered
in the State of North Carolina, and its validity,
interpretation, performance and enforcement shall be governed
by the laws and judicial decisions of the State of North
Carolina.
Section 3.7 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto. No representation,
agreement, guaranty, warranty, waiver or change in this
Agreement not included herein shall be binding upon either
party unless in writing and separately signed by both parties.
Section 3.8 Severability. If any provision contained in this Agreement
shall for any reason be held invalid, illegal or unenforceable
in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein.
Section 3.9 Consent to Jurisdiction. Any action for breach of this
agreement shall be brought in the federal or state courts of
and for the County of Mecklenburg, State of North Carolina,
and the parties hereby consent to the personal jurisdiction of
such courts.
Section 3.10 Counterparts. This Agreement may be executed in counterparts,
each of which may be signed separately and may be enforceable
as an original, but all of which together shall constitute but
one agreement.
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Section 3.11 Authorization. Each person executing this Agreement in a
representative capacity hereby represents and warrants that he
is fully authorized to do so.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date and year first indicated above.
/s/ Xxxxxxx X. Xxxx, III (SEAL)
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XXXXXXX X. XXXX, III
Sworn to and subscribed
before me, this 9th day of
July, 1996.
/s/ Xxxx X. Xxxx
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Notary Public
My commission expires:
May 5, 1998
-----------------------------
(Official Seal)
BROADWAY & SEYMOUR, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Executive Vice President
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