AGREEMENT
Exhibit
99.1
AGREEMENT
This
AGREEMENT dated as of twenty-first day of September 2008 (the “Agreement”), by
and between Proginet Corporation, a Delaware corporation with its principal
place of business at 000 Xxxxxx Xxxx Xxxxx Xxxxxx Xxxx, Xxx
Xxxx 00000, and Xxxxx X. Xxxxx, having an address at 0 Xxxxx Xxxx,
Xxxxxx Xxxxxx, Xxx Xxxx 00000.
WHEREAS, Xxxxx X. Xxxxx
(“Xxxxx”) and Proginet Corporation (the “Company”) are parties to that certain
employment agreement dated October 31, 2007 (the “Employment Agreement”);
and
WHEREAS, the Company and Xxxxx
have agreed to terminate the Employment Agreement, subject to the terms and
conditions specified below;
NOW THEREFORE, the parties
hereto agree as follows:
1. Effective Date of
Termination: The parties agree that Kelly’s Employment
Agreement and his employment with the Company terminated at the close of
business on July 31, 2008.
2. Severance: The
parties acknowledge that Xxxxx has determined to resign and such resignation
constitutes a “Termination For Good Reason” under the Employment Agreement in
that the board of directors of the Company communicated its intention to
terminate the Employment Agreement without “Cause.” Under these
circumstances, the Company and Xxxxx acknowledge that he is entitled to the
severance payments provided for in the Employment Agreement, and the parties
hereby agree that such compensation is finally determined as
follows:
(i) a
continuation of Kelly’s base salary of $237,360 per annum for a period of 18
months, commencing in August, 2008 and payable semi-monthly in 36 installments
according to the Company’s regular payroll practice;
(ii) a
payment of $51,750, which is equal to 150% of the highest annual bonus paid to
Xxxxx during fiscal years 2005, 2006, and 2007, commencing August, 2008 and
payable semi-monthly in 36 installments according to the Company’s regular
payroll practice;
(iii) Continued
participation from August 1, 2008 to January 31, 2010, in the Company’s group
health and insurance plan, 401k plan and any other benefit plans or programs in
which Xxxxx was enrolled on the effective date of the termination of his
employment. The Company will provide to Xxxxx 36 semi-monthly
payments of $677.86, with respect to Kelly’s entitlement to the Company’s
matching contribution under the 401k plan, as well
as the other benefits that would be available to Xxxxx by participating in the
401k plan, recognizing that Xxxxx is not entitled to participate under
such plan due to the termination of employment;
(iv) Xxxxx
hereby waives his right to executive job placement counseling as provided for in
the Employment Agreement; and
(v) a
payment of $5,478, equal to six days of accrued vacation time as of July 31,
2008 which was paid on August 22, 2008;
(vi) a
continued monthly automobile allowance of $612 for the period from August 1,
2008 until January 31, 2010, amounting to a total of $11,016.
(vii) Xxxxx
acknowledges that the final date for him to exercise any of his options to
purchase Proginet Common Stock was August 30, 2008 and acknowledges and agrees
that he will be given no extension of time to exercise such
options.
The
parties agree that the Company’s obligations to pay the aforementioned amounts
are contingent upon Xxxxx not revoking this Agreement as provided in Section 6
below.
3. Intentionally
Omitted.
4. Continuation of Certain
Terms. Xxxxx acknowledges the continued effectiveness of the
confidentiality provision specified on page 3 of the Employment Agreement and
agrees to abide such terms as specified therein. Xxxxx also acknowledges the
continued effectiveness of that certain Confidential Information and
Non-Competition Agreement between Xxxxx and the Company dated August 30,
1994.
5. General Release of Claims by
Xxxxx. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Xxxxx, on behalf of himself, his
heirs, executors, administrators, successors and assigns, hereby releases and
discharges the Company and its past and present officers, directors, corporate
affiliates, subsidiaries, investors, employees, agents, contractors, and
representatives, including but not limited to counsel, and their respective
successors and assigns, (collectively, the “Releasees”) of and from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, in law, admiralty or equity, which against the
Company and/or any of the Releasees, Xxxxx now has or hereafter shall or may
have, for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Agreement, including,
without limitation, any alleged claim under or alleged violation of the National
Labor Relations Act, Title VII of the Civil Rights Act of 1964, Sections 1981
through 1988 of Title 42 of the United States Code, the Employee Retirement
Income Security Act of 1974, the Americans with Disabilities Act of 1990, the
Age Discrimination in Employment Act of 1967, the Older Workers Benefit
Protection Act of 1990, the Fair Labor Standards Act, the Equal Pay Act of 1963,
the Occupational Safety and Health Act, the Fair Credit Reporting Act, the
Family Medical Leave Act, the New York City Administrative Code, the New York
Civil Rights Law, the New York State Executive Law, the New York Legal
Activities Law, the New York State Legal Antitrust Law, the New York
State Wage and Hour Laws, the New York Equal Pay Law, the New York Labor Law,
the New York Whistleblower Law, and any and all other federal, state, or local
civil or human rights laws and/or any other alleged contract or tort or common
law having any bearing whatsoever on the compensation, pension, terms and
conditions and/or cessation of his employment. Notwithstanding the foregoing,
this release shall not apply to any claim by Xxxxx relating to a breach by the
Company of this Agreement.
6. Voluntary, Knowing and
Counseled Agreement; Revocation Period. Xxxxx acknowledges
that: (i) he has carefully read this Agreement; (ii) he has had 21 days to
consider fully the terms of this Agreement; (iii) he has consulted with counsel
in connection with this Agreement and has been assisted by counsel in
negotiating this Agreement; (iv) he fully understands the significance of all of
the terms and conditions of this Agreement; and (v) he is signing this Agreement
voluntarily and of his own free will and consents to all the terms and
conditions contained herein. Xxxxx understands that he has 7 days
from his delivery of an executed copy of this Agreement to the Company to revoke
this Agreement by written notice to Company.
7. Non-Disparagement. Xxxxx
agrees that he will not disparage in any way to any person, either orally or in
writing, the Company or any of its former and present directors, officers,
stockholders, employees, agents or corporate affiliates.
8. Affirmations. Xxxxx
affirms that he has not filed, or caused to be filed, and that he presently is
not a party to, any claim, complaint, or action against the Company in any forum
or form. Xxxxx further affirms that he has been paid and has received all leave,
vacation, compensation, wages, bonuses, commissions, and/or benefits to which he
may be entitled and that no other leave, vacation, compensation, wages, bonuses,
commissions and/or benefits are due to him, other than the compensation
expressly set forth in this Agreement.
9. Governing Law and
Interpretation. This Agreement shall be governed by the laws
of the State of New York, other than those which would defer to the substantive
laws of another jurisdiction.
10. Entire Agreement;
Amendment. This Agreement sets forth the entire agreement
between the Company and Xxxxx and shall supersede any and all prior agreements
or understandings (except as expressly herein set forth) between the parties. It
may not be amended except by a written agreement signed by both
parties. Xxxxx agrees that he has not relied on any representations,
promises, or agreements of any kind made to him in connection with his decision
to accept this Agreement, except for those set forth in this
Agreement.
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PROGINET
CORPORATION
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By:
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/s/
Xxxxx Xxxx
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| Name: |
Xxxxx
Xxxx
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| Title: | President/CEO | |
| /s/ Xxxxx Xxxxx | ||
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