EXHIBIT 10.23
SEVERANCE AGREEMENT AND GENERAL RELEASE
This SEVERANCE AGREEMENT AND GENERAL RELEASE (this "Severance
Agreement") dated April 30, 2002 is entered into by and between Netzee, Inc.
(hereinafter "Netzee"), and Xxxxxxx X. Xxxxxxxx (hereinafter "Xxxxxxxx").
WHEREAS, Xxxxxxxx has been employed by Netzee as its Senior Executive
Vice President, Chief Financial Officer and Secretary pursuant to an Employment
Agreement dated March 1, 2000, as amended on May 1, 2001 (the "Employment
Agreement");
WHEREAS, the parties desire to end their employment relationship,
preserve the good will between the parties, and dispose of all claims which each
may have, or may have had, against the other;
NOW, THEREFORE, for and in consideration of the good and valuable
consideration set forth herein, and in consideration of the Indemnification
Agreement dated April 29, 2002, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1.
Unless the context plainly requires otherwise, the term "Xxxxxxxx"
includes his agents, attorneys, employees, heirs, successors and assigns; and
the term "Netzee Releasees" includes Netzee and its shareholders, directors,
officers, partners, agents, attorneys, parent entities, employees, successors,
assigns, affiliates, and subsidiaries, and each of their respective
shareholders, directors, officers, partners, agents, attorneys, parent entities,
employees, successors, assigns, affiliates and subsidiaries. Any other
capitalized terms not defined herein shall have the meanings ascribed to them in
the Employment Agreement.
2.
Xxxxxxxx hereby resigns from employment with Netzee effective April 30,
2002. After that date, he will have no right to further employment with Netzee,
and Netzee will have no obligation to employ him.
3.
Except as otherwise set forth herein, Xxxxxxxx agrees that he has no
claim to any benefits or payments from Netzee. Netzee will pay to Xxxxxxxx the
following amounts:
(a) upon the execution of this Severance Agreement, the
sum of $209,686, which represents (1) Xxxxxxxx'x current annual salary under the
Employment Agreement, (2) one week of accrued vacation and (3) Xxxxxxxx'x
automobile allowance and club dues for the remainder of the Term under the
Employment Agreement;
(b) upon the execution of this Severance Agreement, the
sum of $112,000, as a bonus
for Xxxxxxxx'x past service to Netzee; and
(c) upon the date that is 90 days from the date of this
Severance Agreement, the sum of $50,000, provided that Xxxxxxxx has provided
finance-related assistance satisfactory to Netzee on an as-needed basis during
such 90-day period.
Xxxxxxxx shall be responsible for payment of all taxes on such amounts,
and Netzee will withhold taxes on such amounts as provided by applicable law.
Netzee also agrees to make any necessary COBRA coverage payments on
Xxxxxxxx'x behalf providing for coverage through July 31, 2002.
4.
Except as expressly set forth herein, this Severance Agreement shall
supersede and extinguish the Employment Agreement. Notwithstanding the
foregoing, Section 5 of the Employment Agreement (with respect to trade secrets
and confidential information), as well as any rights or claims available
pursuant to the Indemnification Agreement dated April 29, 2002, shall continue
to be in full force and effect as if such provision had been set forth herein.
Xxxxxxxx agrees that the provisions of Section 4.c.(v) of the Employment
Agreement with respect to Xxxxxxxx'x outstanding options to purchase Netzee
stock shall be null and void, and the provisions of each Option Agreement with
respect to each such stock option shall remain in full force and effect,
including the provisions therein with respect to the forfeiture and exercise of
options upon and following termination of Xxxxxxxx'x employment.
5.
Xxxxxxxx hereby releases, discharges and acquits forever the Netzee
Releasees from any and all debts, claims, demands, liabilities, assessments,
agreements, actions or causes of action, whether in law or in equity, whether
direct or indirect, whether presently known or unknown, absolute or contingent,
of any kind whatsoever which Xxxxxxxx had, now has, or may have had against any
of the Netzee Releasees from the beginning of time up to the date of this
Severance Agreement. Netzee hereby releases, discharges, and acquits forever
Xxxxxxxx from any and all debts, claims, demands, liabilities, assessments,
agreements, actions or causes of action, whether in law or in equity, whether
direct or indirect, whether presently known or unknown, absolute or contingent,
of any kind whatsoever which Netzee had, now has, or may have had against
Xxxxxxxx from the beginning of time up to the date of this Severance Agreement.
6.
Without limiting the foregoing release, Xxxxxxxx waives all rights he
may have had or now has to pursue any and all remedies available to him under
any cause of action whatsoever against the Netzee Releasees, including without
limitation, claims of wrongful discharge, emotional distress, defamation, breach
of contract, breach of the covenant of good faith and fair dealing, the Employee
Retirement Income Security Act, and any other laws and regulations relating to
employment, including any and all employment laws of the State of Georgia.
Xxxxxxxx further acknowledges and expressly agrees that he is waiving any and
all rights he may have had or now has to pursue any claim of discrimination,
including
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but not limited to, any claim of discrimination based on sex, age, race,
national origin, disability, or on any other basis, under Title VII of the Civil
Rights Act of 1964, the Americans With Disabilities Act of 1990, the Equal Pay
Act of 1963, the Age Discrimination in Employment Act of 1967, the Civil Rights
Act of 1866, any other analogous law of the State of Georgia, and all other laws
and regulations relating to employment.
7.
It is understood and agreed that the consideration given for this
Severance Agreement is not to be construed as an admission of liability or fault
on the part of either party.
8.
This Severance Agreement supersedes all prior and contemporaneous
written and oral agreements and understandings between the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
written and oral discussions, negotiations and agreements with respect to such
subject matter.
9.
Xxxxxxxx further warrants and agrees he will not disparage Netzee or
its owners, officers, directors, shareholders, employees, agents, or its
business, products, policies, practices or services, in any way whatsoever.
Netzee warrants and agrees that its current Board members and senior executives
will not disparage Xxxxxxxx.
10.
This Severance Agreement has been executed in the State of Georgia and
any questions as to its validity, meaning, interpretation, or application shall
be controlled by the laws of the State of Georgia.
11.
If any provision of this Severance Agreement is found to be
unenforceable, it shall not affect the enforceability of the remaining
provisions and the Court shall enforce all remaining provisions to the extent
permitted by law.
12.
Xxxxxxxx hereby acknowledges and understands and Netzee agrees that:
(a) Xxxxxxxx may have at least twenty-one (21) days after receipt
of this Severance Agreement within which he may review and
consider, discuss with an attorney of his own choosing, and
decide to execute or not execute this Severance Agreement;
(b) Xxxxxxxx has seven (7) days after the execution of this
Severance Agreement within which he may revoke this Severance
Agreement;
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(c) In order to revoke this Severance Agreement, Xxxxxxxx or his
attorney must give written notice to Netzee by delivering a
letter to Netzee's President and Chief Executive Officer,
Xxxxx Xxxxxxx, and to its legal counsel, Xxxx X. Xxxxxxx,
stating that Xxxxxxxx is revoking this Severance Agreement. To
effect a revocation, delivery of the letter must be made on or
before seven (7) days after the execution of this Severance
Agreement. The letter shall be delivered and addressed
pursuant to the notice provisions set forth in paragraph 13
below;
(d) This Severance Agreement shall not become enforceable until
after the expiration of seven (7) days following the date
Xxxxxxxx executes this Severance Agreement and it will only
become enforceable if Xxxxxxxx does not revoke the Severance
Agreement as provided for herein; and
(e) In the event that Xxxxxxxx revokes this Severance Agreement
pursuant to this provision, Xxxxxxxx agrees that he
immediately will return to Netzee any and all consideration
already paid by Netzee under Paragraph 3 above.
13.
Any notice, demand or other communication which any party is required
or permitted to provide to the other pursuant to this Severance Agreement shall
be in writing and sent by certified mail, return receipt requested, or by
Federal Express, signature required, to Xx. Xxxxx Xxxxxxx, President and Chief
Executive Officer, Netzee, Inc., 6190 Powers Ferry Road, Powers Ferry Landing
East, Suite 400, Atlanta, Georgia 30339 (if to Netzee), or to Xxxxxxx X.
Xxxxxxxx, 000 Xxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (if to Xxxxxxxx).
Notice will be effective upon the date of receipt by the party to be notified.
In addition, Xxxxxxxx shall send a copy of the notice to Netzee to Xxxx X.
Xxxxxxx, Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, at the same time and by the same method of delivery as
to Netzee. However, the copy to Xx. Xxxxxxx shall not constitute notice.
14.
Xxxxxxxx represents and warrants that he has fully read this Severance
Agreement, that he understands all the terms and conditions set forth herein,
and that he is entering into this Severance Agreement voluntarily and without
promise or benefit other than as set forth herein. Xxxxxxxx further acknowledges
that he may have at least twenty-one (21) days within which to consider this
Severance Agreement, that he was advised to consult with an attorney of his own
choosing concerning the releases and waivers contained in and the terms of this
Severance Agreement, and that the waivers he has made, the releases he has
given, and the terms that he has agreed to herein are made knowingly,
consciously, and with full appreciation that he is forever foreclosed from
pursuing any of the rights so waived and released.
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15.
This Severance Agreement may be modified or amended only in a writing
signed by the parties hereto. IN WITNESS WHEREOF, the undersigned have set their
hands and seals on the date written.
/s/ XXXXXX X. XXXXX /s/ Xxxxxxx X. Xxxxxxxx
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WITNESS XXXXXXX X. XXXXXXXX
NETZEE, INC.
/s/ XXXXXX X. XXXXX By: /s/ Xxxxx X. Xxxxxxx
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WITNESS Name: XXXXX X. XXXXXXX
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Title: President and CEO
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