TRANSITION AGREEMENT
Exhibit
10.66
This
Transition Agreement (the “Agreement”) is made and entered into as of December
12, 2007, by and between Tier Technologies, Inc., a Delaware corporation
(together with its successors and assigns, the “Company”), and Xxxxxx X. Xxxxx
(the “Executive”).
WHEREAS,
the Company and the Executive are parties to an Executive Severance and Change
in Control Benefits Agreement entered into July 30, 2003 (the “Severance
Agreement”);
WHEREAS,
the Company wants the Executive to continue in her current officer positions
reporting to the Company’s Chief Executive Officer, and, as applicable, to the
Company’s Board of Directors, until March 31, 2008 (the “Separation
Date”);
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is mutually acknowledged, the Company and the Executive,
intending to be legally bound, agree as follows:
1. Separation. The
Company hereby provides notice that it will end the Executive’s employment in an
Involuntary Termination without Cause (as defined in the Severance Agreement),
effective as of the Separation Date, provided that she does not resign and
is
not terminated for Cause (as defined the Severance Agreement) before such date,
in either of which case Executive will not receive the compensation
hereunder.
2. Compensation. Assuming
the Executive satisfies the conditions of the Severance Agreement, including
executing a release of all claims in the form attached to the Severance
Agreement and not thereafter revoking such release, and her employment ends
on
an Involuntary Termination without Cause, the Company will provide the following
benefits:
(a) 12
months’ base salary in the amount of $220,000 in a single lump sum payment, on
the next paydate occurring at least 10 days following the Separation Date,
provided that the release has become effective;
(b) Payment
by the Company of any post-employment health insurance premiums in
accordance with the Company’s customary treatment of senior executives for the
shorter of (i) the 12 months following the Separation Date or (ii) the period
during which she is eligible for COBRA (without regard to any early termination
of the COBRA period that might apply if she ceases to be within the coverage
area of the Company’s plan); and
(c) Payment
upon presentation of receipts for expenses related to outplacement and incurred
in 2008, to a maximum of $7,500.
The
Executive agrees that the foregoing payments satisfy all Company obligations
under the Severance Agreement and all other compensation and benefits owed
to
the Executive (other than
compensation
and benefits already accrued as of the date of this Agreement and
accruing between the date of this Agreement and the Separation
Date). The Executive agrees that, to receive the compensation above,
she must execute the release after the close of business on the date her
employment ends or within two business days thereafter.
3. Further
Services. Commencing after the Separation Date and for the six months
thereafter, the Executive shall make herself reasonably available for
consultation under a consulting arrangement to be executed on or before the
Separation Date (with a monthly retainer, paid in arrears each month, of
$18,333.33) for the six months following the Separation Date.
4. Employment
Status. This Agreement does not constitute a contract of
employment or impose upon the Executive any obligation to remain as an employee,
or impose on the Company any obligation (i) to retain Executive as an employee
or (ii) to change the status of Executive as an at-will employee. The
Company agrees not to terminate Executive’s employment before March 31, 2008
without Cause.
5. Assignability;
Binding Nature. This Agreement shall be binding upon and inure to
the benefit of both parties and their respective successors and assigns,
including any corporation or entity with which or into which the Company may
be
merged or that may succeed to its assets or business; provided,
however, that the obligations of the Executive are personal and
shall
not be assigned by her.
6. Entire
Agreement. This Agreement contains the entire understanding and
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations
and
undertakings, whether written or oral, with respect thereto, including, without
limitation, the Severance Agreement, except as provided herein. The
parties agree that nothing herein supersedes any eligibility for general
benefits programs before the Separation Date or the Executive’s agreement under
the Nondisclosure and Proprietary/Confidential Information/NonSolicitation
Agreement, dated May 4, 2004, which she agrees remains in effect.
7. Amendment
or Waiver. No provision in this Agreement may be amended unless
such amendment is agreed to in writing and signed by the Executive and an
authorized officer of the Company. No waiver by either party of any
breach by the other party of any condition or provision contained in this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the
Executive or an authorized officer of the Company, as the case may
be.
8. Taxation. The
Company may withhold from any amounts payable under this Agreement such federal,
state and local taxes as may be required to be withheld pursuant to any
applicable law or regulation. To the extent that, at the Executive’s
request, the Company does not withhold taxes with respect to payments during
the
consultation period, the Executive shall indemnify the Company if it incurs
any
taxes, penalties, or interest in connection with such request. The
application of Section 409A of the Internal Revenue Code (“Section 409A”) is
fact specific and uncertain, and the Executive has requested payment as provided
herein. The Company makes no representations or warranty and shall
have no liability to the Executive or any other person if any provisions of
or
payments under this Agreementare determined to constitute
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
TIER
TECHNOLOGIES, INC
|
By:
|
||
| Name: | ||
| Title: |
THE
EXECUTIVE
| Xxxxxx X. Xxxxx |
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