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EXHIBIT 10.35
SEVERANCE AGREEMENT AND GENERAL RELEASE
This SEVERANCE AGREEMENT AND GENERAL RELEASE ("Severance Agreement")
dated May 5, 2001 is entered into by and between Netzee, Inc. (hereinafter
"Netzee"), and Xxxxx Xxxxxx Xxxxxxxx, Jr. (hereinafter "Xxxxxxxx").
WHEREAS, Xxxxxxxx has been employed by Netzee as its Chief Revenue
Officer pursuant to an Employment Agreement dated October 9, 2000 (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, 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 owners, stockholders,
directors, officers, partners, agents, attorneys, parent entities, employees,
successors, assigns, affiliates, and subsidiaries, and each of their respective
owners, stockholders, directors, officers, partners, agents, attorneys, parent
entities, employees, successors, assigns, affiliates and subsidiaries.
2.
Xxxxxxxx hereby resigns from employment with Netzee effective May 5,
2001. After that date, he will have no right to further employment with Netzee;
he shall not apply for reemployment with Netzee; and Netzee will have no
obligation to employ him; however, Netzee shall be obligated to pay Xxxxxxxx any
compensation earned and benefits accrued through May 5, 2001, in addition to the
payments under Section 3 of this Severance Agreement.
3.
Netzee will pay Xxxxxxxx a lump sum payment of One Hundred Thousand
Dollars ($100,000.00), minus appropriate withholdings under federal, state,
city, or other applicable laws and appropriate deductions. From May 5, 2001
through September 30, 2001, Netzee will continue Xxxxxxxx'x health insurance
coverage by making payments pursuant to the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"). For the remainder of the COBRA period,
continuation of this
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coverage will be at Xxxxxxxx'x own expense. Xxxxxxxx'x eligibility for COBRA
continuation shall be governed by the COBRA statute. Xxxxxxxx agrees to return
to Netzee all property of Netzee, including, but not limited to, all office
equipment, such as laptop computers, printers and cellular telephones. Such
equipment shall be returned to Netzee no later than the close of business on
September 30, 2001. Xxxxxxxx agrees that the payments and benefits set forth
herein are in excess of those to which he would otherwise be entitled, and that
he has no claims to any benefits or payments from Netzee except as is expressly
set forth herein.
4.
This Severance Agreement shall supersede and extinguish the Employment
Agreement and the November 9, 1999 Netzee, Inc. Stock Option Agreement, except
for Section 5 of the Employment Agreement, which shall remain in full force and
effect.
5.
Xxxxxxxx hereby releases, discharges, and acquits forever the Netzee
Releasees from any and all debts, claims, demands, liabilities, assessments,
actions or causes of action, whether in law or in equity, whether direct or
indirect, whether presently known or unknown, absolute or contingent, arising
under any law, rule, regulation, ordinance, agreement, guideline or other
standard of conduct of any kind and 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, actions or causes of action, whether in law or in equity, whether
direct or indirect, whether presently known or unknown, absolute or contingent,
arising under any law, rule, regulation, ordinance, agreement, guideline or
other standard of conduct of any kind and 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
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any and all rights he may have had or now has to pursue any claim of
discrimination, including 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, but is in compromise and settlement of disputed
claims.
8.
Except as set forth herein, 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;
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(b) Xxxxxxxx has seven (7) days after the execution of this
Severance Agreement within which he may revoke this Severance
Agreement;
(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 CEO, Xxxxx Xxxxxxx, and to its legal
counsel, Xxxxxxxx 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) If Xxxxxxxx revokes this Severance Agreement, he agrees that
he immediately will return to Netzee any and all consideration
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, Netzee, Inc., 6190
Powers Ferry Road, Powers Ferry Landing East, Suite 400, Atlanta, Georgia 30339
(if to Netzee), or to Xxxxx Xxxxxx Xxxxxxxx, Jr., 00 Xxxxxxxxx Xxxx, Xxxxxxxxxx,
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 Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx,
L.L.P., 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.
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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.
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 XXXXXXXX /s/ XXXXX XXXXXX XXXXXXXX, JR.
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WITNESS XXXXX XXXXXX XXXXXXXX, JR.
NETZEE, INC.
/s/Xxxxx X. Xxxxxxx By: /s/Xxxx Xxxxxxxx
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WITNESS
Its: Senior Vice President & CFO
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Date: May 15, 2001
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