Exhibit 10.5.5
CHANGE IN CONTROL SEVERANCE AGREEMENT
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THIS AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT (this
"Agreement") is made and entered into this the 3rd day of February, 2003,
between INTELIDATA TECHNOLOGIES CORPORATION, a Delaware corporation (the
"Company"), and XXXXXX X. XXXXXXXX, XX. (the "Executive"). Certain capitalized
terms used in this Agreement are defined in Section 6.
R E C I T A L S
The Company acknowledges that Executive has made and is expected to make
significant contributions to the growth and success of the Company and Related
Entities. The Company also acknowledges that, as is the case for many public
companies, there exists the possibility of a Change in Control of the Company.
The Company recognizes that the possibility of a Change in Control may
contribute to uncertainty on the part of the Executive and may result in the
departure or distraction of the Executive from his or her duties and
responsibilities.
Outstanding management of the Company is always essential to advancing the
best interests of the Company, the Related Entities and the Company's
shareholders. In the event of a threat or occurrence of a bid to acquire or
change control of the Company or to effect a business combination, it is
particularly important that the business of the Company and Related Entities be
continued with a minimum of disruption. The Company believes that the objective
of securing and retaining outstanding management will be achieved if the
Executive is given assurances of employment security so that he or she will not
be distracted by the personal uncertainties and risks created by such
circumstances.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, the compensation the Company agrees herein to pay to
Executive, the covenants of Executive stated herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Executive hereby agree as follows:
1. Effective Date. The Effective Date of this Agreement is February 3, 2003.
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2. Term of Agreement. The Term of this Agreement begins on the Effective
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Date and ends on the day before the second anniversary of the Effective Date.
Notwithstanding the preceding sentence, the Term of this Agreement shall
automatically be extended for an additional twelve-month period, effective as of
the end of the initial two-year term and each annual anniversary thereafter,
unless the Company gives Executive written notice, at least ninety (90) days
prior to the applicable extension date, that the Term of this Agreement will not
be so extended. Notwithstanding the foregoing, the Executive's right to receive,
and the Company's obligation to pay, the Termination Benefits pursuant to
Section 3 and 4 hereunder and the provisions of Section 7, 8, 9, 10 and 20 shall
survive the expiration of the Term of this Agreement.
3. Right to Receive Termination Benefits. Executive shall be entitled to
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receive the Termination Benefits described in Section 4 if Executive's
employment with the Company and the Related Entities terminates or is terminated
as described in subsection (a), (b), (c) or (d) below:
(a) Executive shall be entitled to receive the Termination Benefits if (x)
during the Term of this Agreement, the Company makes a public announcement or
files a report or proxy statement with the Securities and Exchange Commission in
either case disclosing a transaction or series of transactions which, if
completed, would constitute a Change in Control (the announcement and the filing
of the report or proxy statement are each hereinafter referred to as a "Section
3 Disclosure"), and (y) Executive's employment with the Company and all Related
Entities is terminated by the Company (or by the Company or a Related Entity if
Executive is employed by a Related Entity) without Cause during the period
beginning with the date of the Section 3 Disclosure and ending on the earlier of
the date that the Board, acting in good faith, adopts a resolution stating that
the transaction or series of transactions described in the Section 3 Disclosure
will not be completed or the date that such transaction or series of
transactions is completed.
(b) Executive shall be entitled to receive the Termination Benefits if (x)
during the Term of this Agreement the Company makes a Section 3 Disclosure and
(y) Executive resigns from the employment of the Company and all Related
Entities with Good Reason during the period beginning with the date of the
Section 3 Disclosure and ending on the earlier of the date that the Board,
acting in good faith, adopts a resolution stating that the transaction or series
of transactions described in the Section 3 Disclosure will not be completed or
the date that such transaction or series of transactions is completed.
(c) Executive shall be entitled to receive the Termination Benefits if (x)
a Control Change Date occurs during the Term of this Agreement and (y) within
ninety (90) days before or twenty-four (24) months after the Control Change Date
Executive's employment with the Company and all Related Entities is terminated
by the Company (or by the Company or a Related Entity if Executive is employed
by a Related Entity) without Cause.
(d) Executive shall be entitled to receive the Termination Benefits if (x)
a Control Change Date occurs during the Term of this Agreement and (y) within
ninety (90) days before or twenty-four (24) months after the Control Change Date
Executive resigns from the employ of the Company and all Related Entities with
Good Reason.
Executive will not be entitled to receive the Termination Benefits unless
Executive's employment with the Company and all Related Entities is terminated
or terminates as described in one of the foregoing subsections (a), (b), (c) or
(d). By way of example and not of limitation, Executive will not be entitled to
receive the Termination Benefits if his employment with the Company or one or
more Related Entities ends on account of Executive's death, Disability,
termination for Cause or Executive's voluntary resignation without Good Reason.
In the event the Executive is not entitled to receive the
Termination Benefits described herein, the Executive shall only be entitled to
receive any payments, benefits, awards or compensation to which Executive is
entitled or that may be available in accordance with the established employee
plans, policies, programs and practices of the Company and Related Entities or
pursuant to any other agreements Executive has with the Company and Related
Entities.
4. Termination Benefits. Upon a termination of Executive's employment as
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described in subsection (a), (b), (c) or (d) of Section 3, Executive shall be
entitled to receive the following Termination Benefits:
(a) A lump sum payment in an amount equal to any unpaid Base Pay and
accrued leave or vacation pay from the Company and each Related Entity through
the Termination Date;
(b) A lump sum payment in an amount equal to any unpaid Annual Bonus that
has been earned from the Company or any Related Entity for a period ended prior
to the Termination Date;
(c) A lump sum payment in an amount equal to two (2) times Executive's Base
Pay;
(d) A lump sum payment in an amount equal to any unreimbursed expenses that
Executive incurred on behalf of the Company or a Related Entity prior to the
Termination Date to the extent that such expenses are reimbursable under the
standard reimbursement policies of the Company or the Related Entity;
(e) Acceleration of the vesting and exercisability of all outstanding stock
options and stock awards previously granted to the Executive and extension of
the period for exercising such stock options until the expiration date of such
stock options, notwithstanding the termination of Executive's employment with
the Company and all Related Entities and notwithstanding any provisions in such
stock options to the contrary. For purposes of the foregoing sentence, the
expiration date shall be the expiration date of the stock options that is not
based on continuance or termination of the employment of Executive with the
Company or any Related Entity;
(f) Payment of or reimbursement for any COBRA premiums during the
Continuation Period for COBRA coverage elected for the Executive, his or her
spouse and his or her dependents for those participating in the Welfare Plans
providing health and medical insurance coverage who elect such COBRA coverage at
the Termination Date. Executive's right to continuation of coverage under the
Welfare Plans providing health and medical insurance coverage, pursuant to
Section 4980B (or any successor section) of the Code, shall commence as of the
Termination Date pursuant to the terms of such Welfare Plans. In lieu of the
foregoing, if the Executive, his or her spouse and his or her dependents are not
participating in the Welfare Plans providing health and medical insurance
coverage at the Termination Date and are not entitled to elect such COBRA
coverage, but (i) health and medical insurance coverage for the Executive, his
or her spouse and his or her dependents (other than pursuant to the Welfare
Plans) was
in effect before termination of Executive's employment and (ii) the Company or a
Related Entity was paying or reimbursing Executive for any premiums on such
other health and medical insurance coverage, then Executive shall be entitled to
continue to receive payment of or reimbursement for any premiums during the
Continuation Period for such other health and medical insurance coverage for the
Executive, his or her spouse and his or her dependents; and
(g) Continued payment of or reimbursement for any premiums during the
Continuation Period on any individual life insurance policies covering the
Executive that the Company or any Related Entity paid or reimbursed Executive
for during his or her employment with the Company or any Related Entity.
Termination Benefits payable in a lump sum will be paid to Executive in cash
within thirty (30) days of the Termination Date. The payment of the Termination
Benefits will be reduced by amounts required to be withheld for applicable
income and employment taxes and other amounts. The Executive shall be entitled
to receive any other payments or Employee Benefits which Executive is entitled
to receive under any employee benefit plan, program, or arrangement maintained
by the Company or any Related Entity in which Executive participates as of the
Termination Date. The amount, form and timing of such payments or Employee
Benefits will be determined by the terms of such employee benefit plans,
programs or arrangements.
5. Excise Taxes.
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(a) If any payment or distribution by the Company or any Related Entity to
or for the benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise pursuant to
or by reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, stock appreciation right or
similar right, or the lapse or termination of any restriction on or the vesting
or exercisability of any of the foregoing (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the Code or to any similar tax imposed by
state or local law, or any interest or penalties with respect to such tax (such
tax or taxes, together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then the Termination Benefits
payable or provided under this Agreement (or other Payments as described below)
must be reduced (but not in excess of the amount of the Termination Benefits
payable or provided under this Agreement) to the largest amount that will result
in no portion of any such Payment being subject to the Excise Tax.
(b) The Accounting Firm will first determine the amount of any Parachute
Payments that are payable to the Executive. The Accounting Firm also will
determine the Excise Tax attributable to the Executive's total Parachute
Payments.
(c) The Accounting Firm will next determine the largest amount of payments
that may be made to the Executive without subjecting the Executive to the Excise
Tax (the "Capped Payments").
(d) The Executive then will receive the total Capped Payments but in no
event will any such reductions imposed under this Section 5 be in excess of the
amount of Termination Benefits payable or provided under this Agreement. In that
case, the total Parachute Payments will be adjusted by first reducing the amount
of any noncash benefits under this Agreement (which includes without limitation
the acceleration of the vesting and exercisability of stock options and stock
awards previously granted to the Executive pursuant to subsection (e) of Section
4 hereof) or any other plan, agreement or arrangement (with the source of the
reduction to be directed by the Executive) and then by reducing the amount of
any cash benefits under this Agreement or any other plan, agreement or
arrangement (with the source of the reduction to be directed by the Executive).
The Accounting Firm will notify the Executive and the Company if it determines
that the Parachute Payments must be reduced to the Capped Payments and will send
the Executive and the Company a copy of its detailed calculations supporting
that determination.
(e) As a result of the uncertainty in the application of Code Sections 280G
and 4999 at the time that the Accounting Firm makes its determinations under
this Section 5, it is possible that amounts will have been paid or distributed
to the Executive that should not have been paid or distributed under this
Section 5 ("Overpayments"), or that additional amounts should be paid or
distributed to the Executive under this Section 5 ("Underpayments"). If the
Accounting Firm determines, based on either the assertion of a deficiency by the
Internal Revenue Service against the Company or the Executive, which assertion
the Accounting Firm believes has a high probability of success or controlling
precedent or substantial authority, that an Overpayment has been made, that
Overpayment will be treated for all purposes as a loan ab initio that the
Executive must repay to the Company immediately together with interest at the
applicable Federal rate under Code Section 7872; provided, however, that no loan
will be deemed to have been made and no amount will be payable by the Executive
to the Company unless, and then only to the extent that, the deemed loan and
payment would either reduce the amount on which the Executive is subject to tax
under Code Section 4999 or generate a refund of tax imposed under Code Section
4999. If the Accounting Firm determines, based upon controlling precedent or
substantial authority, that an Underpayment has occurred, the Accounting Firm
will notify the Executive and the Company of that determination and the amount
of that Underpayment will be paid to the Executive promptly by the Company.
(f) For purposes of this Section 5, the following terms shall have their
respective meanings:
(i) "Accounting Firm" means the independent accounting firm engaged by
the Company in the Company's sole discretion; and
(ii) "Parachute Payment" means a payment that is described in Code
Section 280G(b) (2), determined in accordance with Code Section 280G and the
regulations promulgated or proposed thereunder.
(g) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by the
preceding subsections shall be borne by the Company. If such fees and expenses
are initially paid by Executive, the Company shall reimburse Executive the full
amount of such fees and expenses within five business days after receipt from
Executive of a statement therefore and reasonable evidence of Executive's
payment thereof.
(h) The Company and Executive shall each provide the Accounting Firm access
to and copies of any books, records and documents in the possession of the
Company or Executive, as the case may be, reasonably requested by the Accounting
Firm, and otherwise cooperate with the Accounting Firm in connection with the
preparation and issuance of the determinations and calculations contemplated by
the preceding subsections. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive.
(i) The federal, state and local income or other tax returns filed by
Executive shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
Executive. The Executive, at the request of the Company, shall provide the
Company true and correct copies (with any amendments) of Executive's federal
income tax return as filed with the Internal Revenue Service and corresponding
state and local tax returns, if relevant, as filed with the applicable taxing
authority, and such other documents reasonably requested by the Company,
evidencing such conformity.
6. Certain Definitions. As used in this Agreement, certain terms have the
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definitions set forth below.
(a) Annual Bonus means the aggregate annual bonus, incentive or other
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payments of cash compensation (determined without regard to any deferral
election) to which Executive would have been entitled under the bonus,
incentive, profit-sharing, performance, discretionary pay or similar
arrangement, policy, plan, program or arrangement of the Company or a Related
Entity in which Executive was participating in the year of reference.
(b) Base Pay means Executive's annual base salary (prior to any deferrals
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or reductions) at a rate not less than Executive's annual fixed or base
compensation as in effect immediately before the Company makes a Section 3
Disclosure (if Executive's employment terminates as described in Section 3(a) or
3(b)) or as in effect immediately before the Control Change Date (if Executive's
employment terminates as described in Section 3(c) or 3(d)) or such higher rate
as may be in effect from time to time thereafter.
(c) Board means the Board of Directors of the Company.
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(d) Cause means the termination of the Executive's employment with the
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Company and all Related Entities upon delivery of written notice of termination
for Cause (as defined below) to the Executive (which notice shall specify in
reasonable detail the basis upon which such termination is made) if the Chief
Executive Officer of
the Company or Related Entity or the Board of Directors of the Company or
Related Entity, as appropriate, determines that the Executive: (i) has stolen or
embezzled funds or property of the Company or a Related Entity, (ii) has been
convicted of a felony or entered a plea of "nolo contendre" which in the
reasonable opinion of such Chief Executive Officer or Board of Directors brings
the Executive into disrepute or is likely to cause material harm to the
business, customer or supplier relations, financial condition or prospects of
the Company or a Related Entity, (iii) has, after not less than ten (10) days
prior written notice from such Chief Executive Officer or Board of Directors,
willfully failed to perform or persistently neglected (other than by reason of
illness or temporary disability, regardless of whether such temporary disability
is or becomes a Disability, or by reason of approved vacation or leave of
absence) any duties or responsibilities assigned to the Executive or normally
associated with the Executive's position to the detriment of the Company or any
Related Entity, their reputation or their prospects, (iv) has demonstrated
insubordination or the refusal to carry out directives, or (v) has willfully
violated or breached any provision of this Agreement or any other
employment-related agreement between the Executive and the Company or a Related
Entity or any law or regulation to the material detriment of the Company or any
Related Entity, their reputation or their businesses (collectively "Cause").
(e) Change in Control shall be deemed to have occurred if the conditions
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set forth in any one of the following paragraphs shall have been satisfied:
(i) Any person, or any persons acting together which would constitute
a "group" for purposes of section 13(d) of the Securities Exchange Act of 1934,
together with any affiliate thereof shall beneficially own (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended) at least 50% of the
total voting power of all classes of capital stock of the Company entitled to
vote generally in the election of directors of the Company; or
(ii) Any event or series of events that results in the Directors on
the Board of Directors, who were Directors prior to the event or series of
events, to cease to constitute a majority of the Board of Directors of any
parent of or successor to the Company; or
(iii) A merger, consolidation or reorganization (a) in which the
Company is the continuing or surviving corporation, (b) in which the Company is
not the continuing or surviving corporation, or (c) pursuant to which the
Company's common stock would be converted to cash, securities or other property,
except in the case of either (a), (b), or (c), a consolidation or merger of the
Company in which the holders of the Common Stock immediately prior to the
consolidation or merger have, directly or indirectly, at least a majority of the
total voting power of all classes of capital stock entitled to vote generally in
the election of directors of the continuing or surviving corporation immediately
after such consolidation or merger in substantially the same proportion as their
ownership of Common Stock immediately before such transaction; or
(iv) The consummation of a tender or exchange offer for shares of the
Company's Common Stock (other than tender or exchange offers made by the Company
or Company-sponsored employee benefit plans); or
(v) The sale or transfer of all or substantially all of the assets of
the Company to another corporation or to any person or entity; or
(vi) The Board of Directors of the Company approves a plan of complete
or partial liquidation of InteliData or an agreement for the sale or disposition
by the Company of all or substantially all of its assets.
For purposes of this Section, "Person" shall have the meaning given in Section
(3)(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof; however, a Person shall not include (i) the company or any of its
subsidiaries or affiliates, (ii) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its subsidiaries, (iii)
an underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(f) Code means the Internal Revenue Code of 1986, as amended, or any
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successor thereto, and its underlying regulations.
(g) Continuation Period means the eighteen (18) month period after the
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Termination Date.
(h) Control Change Date means the date on which a Change in Control occurs.
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If a Change in Control occurs on account of a series of transactions or events,
the "Control Change Date" is the date of the last of such transactions or events
in the series.
(i) Disability means the same as under any long-term disability plan of the
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Company or any Related Entity in which Executive was participating or entitled
to participate immediately prior to the Termination Date. In the absence of any
such long-term disability plan, Disability shall mean total and permanent
disability under the federal social security laws.
(j) Employee Benefits means the perquisites, benefits and service credit
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for benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs or arrangements of the Company or any
Related Entity in which Executive is entitled to participate, including without
limitation any stock option, stock purchase, stock appreciation, savings,
pension, supplemental executive retirement, or other retirement income or
welfare benefit, deferred compensation, incentive compensation, group or other
life, health, medical/hospital or other insurance (whether funded by actual
insurance or self-insured by the Company or a Related Entity), disability,
salary continuation, expense reimbursement and other employee benefit policies,
plans, programs or arrangements.
(k) Exchange Act means the Securities Exchange Act of 1934, as amended.
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(l) ERISA means the Employee Retirement Income Security Act of 1974, as
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amended, or any successor thereto, and its underlying regulations.
(m) Good Reason means the Executive resigns his or her employment with the
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Company and all Related Entities (i) upon the failure of the Company or any
Related Entity to make any required payment to the Executive hereunder or under
any other employment-related agreement between the Executive and the Company or
Related Entity, which failure continues unremedied for ten (10) days after the
Executive has given the Chief Executive Officer of the Company or Related Entity
or the Board of Directors of the Company or Related Entity, as appropriate,
written notice of such failure, or any material failure by the Company or
Related Entity to comply with any of the provisions of this Agreement or any
other employment-related agreement between the Executive and the Company or
Related Entity (other than a failure to make a required payment), which failure
continues unremedied for fourteen (14) days after the Executive has given such
Chief Executive Officer or Board of Directors written notice of such failure, or
(ii) upon and after a Change in Control and (a) a substantial diminution of the
Executive's duties or responsibilities compared to the Executive's duties or
responsibilities immediately prior to the Change in Control or (b) a relocation
of more than 50 miles from Executive's principal place of employment with the
Company or any Related Entity as of the date hereof or any subsequent principal
place of employment to which Executive and the Company or any Related Entity may
agree.
(n) Related Entity means any entity that is part of a controlled group of
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corporations or is under common control with the Company within the meaning of
Sections 1563(a), 414(b) or 414(c) of the Code.
(o) Termination Date means the date on which Executive's employment
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terminates or is terminated. If Executive's employment terminates as described
in Section 3(b) or 3(d), the effective date of the termination of Executive's
employment shall be the date specified by Executive.
(p) Welfare Benefits means the benefits provided under "employee welfare
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benefit plans" (as defined in Section 3(1) of ERISA) of the Company or any
Related Entity that Executive was receiving or entitled to receive immediately
prior to the Termination Date.
7. Attorneys' Fees. Except as provided in Section 5, Executive shall be
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entitled to reimbursement from the Company for any attorneys' fees and other
reasonable expenses that Executive incurs in connection with the interpretation,
enforcement or protection of Executive's rights under this Agreement, including
without limitation the initiation or defense of any litigation or other legal
action, whether by or against the Company or any member of the Board or officer
or shareholder of the Company. Regardless of any existing or prior
attorney-client relationship between the Company and the counsel selected by
Executive, the Company irrevocably consents to Executive's entering into an
attorney-client relationship with such counsel and the
Company and Executive agree that a confidential relationship shall exist between
Executive and such counsel. Amounts payable by the Company under this Section 7
shall be paid to Executive within five (5) business days after receipt from
Executive of a statement therefore. Executive shall be entitled to reimbursement
under this Section 7 only if Executive is deemed the prevailing party, in whole
or in part, with respect to the interpretation, enforcement or protection of
Executive's rights under this Agreement.
8. Late Payments. Without limiting the rights of Executive at law or in
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equity, if the Company fails to make any payment or provide any benefit required
to be made or provided under this Agreement on a timely basis, the Company will
pay interest on the amount or value thereof at an annualized rate equal to the
so-called composite "prime rate" as quoted from time to time during the relevant
period in the Northeast Edition of The Wall Street Journal (and any change in
such prime rate shall be effective on and as of the date of such change).
Interest payable under this Section 8 shall be payable as it accrues on demand
but not more frequently than monthly.
9. No Mitigation Obligation. The Company acknowledges that the Termination
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Benefits and other benefits to be provided to Executive in accordance with the
terms of this Agreement are reasonable. Accordingly, Executive is not required
to mitigate the amount of any payment provided for under this Agreement by
seeking other employment or otherwise. Except as expressly provided in Section
19 below (with respect to coordination of this Agreement and other agreements
between the Executive and the Company or any Related Entities), the Termination
Benefits or other benefits to be provided to Executive in accordance with the
terms of this Agreement shall not be reduced or offset on account of any
profits, income, earnings or other benefits from any source whatsoever.
10. Executive's Covenants. In consideration of the Company's promises to
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Executive in this Agreement, the sufficiency of which Executive acknowledges,
Executive covenants as follows:
(a) The Executive for so long as he or she remains an employee of the
Company or any Related Entity and for a period of 12 months after the
Termination Date (the "Non-Competition Period") will not, nor will he or she
permit any person, firm, corporation, partnership or other entity that directly
or indirectly controls, is controlled by or is under common control with the
Executive to, directly or indirectly:
(i) solicit for employment any employee of the Company or any Related
Entity (and it shall be presumed to be a violation of this covenant if a
subsequent employer of Executive hires an employee of the Company or any Related
Entity unless Executive can demonstrate to the Company's reasonable satisfaction
that the Executive had no knowledge of or participation in the solicitation and
hiring of the employee);
(ii) solicit the business of any customer of the Company or any
Related Entity with respect to businesses of the type referred to in subsection
10(a)(iii) hereof;
(iii) engage in any business of the type conducted as of the date
hereof by the Company or any Related Entity, which shall be limited to Internet
banking and electronic xxxx presentment and payment software or services;
(iv) engage in any business substantially similar to that of the
Company or any Related Entity in a geographic area within fifty (50) miles of
the offices of the Company or Related Entity at which the Executive was
previously located;
(v) make any direct or indirect investment in any person, firm,
corporation, partnership or other entity that engages or proposes to engage in
the business of the Company or any Related Entity; or
(vi) make any comments, whether written or unwritten, which disparage
the services and products provided by the Company or any Related Entity or which
are critical of the performance or professionalism of the officers, employees,
and Boards of Directors of the Company or any Related Entity;
provided, however, that this Section 10(a) shall not be construed to prohibit
the Executive from owning less than an aggregate of 5% of any class of capital
stock of any corporation that is traded on a national securities exchange or
inter-dealer quotation system.
(b) Executive agrees to hold in a fiduciary capacity for the benefit of the
Company and the Related Entities all secret or confidential information,
knowledge or data relating to the Company or any Related Entity which shall have
been obtained by Executive during Executive's employment by the Company or any
Related Entity and which shall not be or become public knowledge (other than by
acts of Executive or representatives of Executive in violation of this
subsection (b)). After termination of Executive's employment with the Company
and each Subsidiary, Executive shall not, without the prior written consent of
the Company or as may be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
or a Related Entity and those designated by the Company or a Related Entity.
Executive's covenant under this subsection (b) is effective regardless of
whether Executive receives or becomes entitled to receive benefits under this
Agreement.
11. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of
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the Commonwealth of Virginia other than its choice of law provisions to the
extent that they would require the application of the laws of a State other than
the Commonwealth of Virginia. To the full extent lawful, Executive and the
Company and each Related Entity hereby consents irrevocably to personal
jurisdiction, service and venue in connection with any claim or controversy
arising under this Agreement in the courts of the Commonwealth of Virginia
located in Fairfax County, Virginia and in the federal courts in the Eastern
District of the Commonwealth of Virginia, and each waives all objections to
jurisdiction, service and venue in such courts.
12. Successors, Binding Agreement.
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(a) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all of the business or assets of the Company, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place. This Agreement will be binding upon and inure to the benefit of the
Company and any successor to the Company, including without limitation any
persons acquiring directly or indirectly all or substantially all of the
business or assets of the Company whether by purchase, merger, consolidation,
reorganization or otherwise (and such successor shall thereafter be deemed the
"Company" for the purposes of this Agreement), but will not otherwise be
assignable, transferable or delegable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided in
the preceding section (a) or (b). Without limiting the generality of the
foregoing, Executive's right to receive payments hereunder will not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than a transfer by will or the laws of descent and
distribution. Any attempted assignment or transfer contrary to the provisions of
this Section 12 shall be void ab initio.
13. No Employment Rights. Nothing in this Agreement confers on Executive any
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right to continuance of employment by the Company or any Related Entity. Nothing
in this Agreement interferes with the right of the Company or any Related Entity
to terminate Executive's employment at any time for any reason whatsoever, with
or without Cause, subject to the requirements of this Agreement. Nothing in this
Agreement restricts the right of Executive to terminate his or her employment
with the Company or any Related Entity at any time for any reason whatsoever,
with or without Good Reason.
14. Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original but all of which together constitute
one and the same instrument.
15. Entire Agreement. This Agreement expresses the whole and entire agreement
-----------------
between the parties with reference to the subject matter addressed herein.
16. Notices. All notices, requests and other communications to any party under
------
this Agreement shall be in writing and shall be given to such party at its
address set forth below or such other address as such party may hereafter
specify for the purpose by notice to the other party:
If to Executive: 000 Xxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
If to the Company: InteliData Technologies Corporation
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn:
---------------------
Each notice, request or other communication shall be effective if (i) given by
mail, five days after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (ii) given by electronic
facsimile transmission, when given if receipt is confirmed orally or in writing,
(iii) sent by nationally recognized overnight courier service, three business
days after having been sent or (iv) given by any other means, when delivered at
the address specified in this Section 16.
17. Modification of Agreement. No waiver or modification of this Agreement shall
-------------------------
be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or
received in evidence at any proceeding, arbitration or litigation between the
parties unless such waiver or modification is in writing, duly and executed. The
parties agree that this Section 17 may not be waived except as herein set forth.
18. Recitals. The Recitals to this Agreement are incorporated herein and shall
--------
constitute an integral part of this Agreement.
19. Coordination With Other Agreements. The Executive, the Company and Related
----------------------------------
Entities may be parties to other agreements, policies, plans, programs or
arrangements relating to Executive's employment. The Executive and the Company
agree that this Agreement shall be construed and interpreted so that amounts are
paid and benefits are provided under this Agreement only if and to the extent
that similar amounts and benefits are not paid and provided under any other
similar agreements, policies, plans, programs or arrangements. Without limiting
the foregoing, the Company and the Executive agree that any amounts payable or
benefits provided under subsections 4(a) through 4(g) of this Agreement shall be
reduced by any similar amounts or benefits that Executive receives under any
employment or employment-related agreement between the Executive and the Company
or any Related Entity and any other similar agreements, policies, plans,
programs or arrangements between the Executive and the Company or Related
Entities and by the present value (determined as provided in Section 280G(d)(4)
of the Code) of any other amount of severance relating to salary or bonus
continuation to which Executive may be entitled under any other severance plan,
policy or arrangement of the Company or any Related Entity; it being the intent
of both Executive and the Company and Related Entities not to provide to
Executive any duplicative payments or benefits hereunder.
20. Release of Claims. Notwithstanding any other provision of this Agreement,
-----------------
all amounts to be paid and benefits to be provided under this Agreement are
conditioned
upon and subject to the timely execution of the Executive of a valid release and
waiver containing such terms and conditions as are satisfactory to the Company
and, at a minimum, releasing the Company and Related Entities, and their
shareholders, directors, officers, employees, employee benefit plans,
representatives and agents and their successors and assigns from any and all
claims the Executive or his or her successors and beneficiaries might then have
against them or any of them (excluding any claims for vested benefits under any
ERISA employee benefit plan that the Company or any Related Entity may sponsor).
The waiver and release described herein shall not be considered timely if it is
not executed by the Executive within the time period specified by the Company at
the time of the Company's request that the Executive sign such waiver and
release as a condition to the receipt of amounts to be paid and benefits to be
provided under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
EXECUTIVE
By: /S/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
INTELIDATA TECHNOLOGIES
CORPORATION
By: /S/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx
Chairman, Compensation Committee
