EXHIBIT 10.22
AGREEMENT
C. Xxxxxxx Xxxxxx, 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxx 00000
("Employee") and Netzee, a Georgia Corporation with its principal place of
business at 0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, ("the
Company"), in exchange for their mutual covenants and obligations set forth
herein, hereby agree as follows:
1. As of November 30, 2001, ("Date of Separation"), Employee's
employment with the company shall cease.
2. The Company will pay employee a lump sum of Thirty-Five
Thousand Three Hundred Thirty-Three Dollars and 00 cents ($35,333.00), minus
appropriate withholdings under federal, state, city, or other applicable laws
and appropriate deductions. In addition, in consideration for the successful
relocation of the Connecticut Call Center, the Company will pay employee a lump
sum bonus of Fifty Thousand Dollars and 00 cents ($50,000.00) pursuant to the
addendum to the Agreement with Bank of America for technical support services.
Payment of bonus will be made upon receipt of the payment from Bank of America
that is anticipated to be made on or around December 31, 2001.
Employee agrees and acknowledges that this total amount
constitutes adequate consideration for his covenants and obligations set forth
herein, it being an amount over and above any entitlements that he has or may
have had by reason of his separation from employment with the Company.
3. The Company will pay Employee any unused, accrued vacation
time for 2001, minus appropriate withholdings under federal, state, city or
other applicable laws and appropriate deductions, on November 30, 2001.
4. Employee shall be entitled to continuation of coverage under
the Company's health/medical insurance plan pursuant to any rights she may have
under the federal Consolidated Omnibus Budget Reconciliation Act, as amended
("COBRA"), part VI of Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974 ("ERISA"), as amended; Internal Revenue Code ss.4980(B)(f).
Such continuation shall be afforded up to the maximum period provided by law so
long as Employee submits payments for elected coverage and otherwise complies
with conditions on a timely basis. For the COBRA period December 2001 through
January 2002, the Company will pay for the continuation of the COBRA coverage.
Should the Employee decide to continue coverage beyond January 2002, Employee
shall be responsible for payment of the COBRA continuation.
5. Employee acknowledges having had access to the Company's
confidential, proprietary information and agrees that he will keep it in strict
confidence, and will not, either directly or indirectly, make known, reveal, or
otherwise disseminate such information gained by Employee during her association
with the Company.
Except as provided herein, this Release Agreement supersedes
all prior agreements between the company and the employee. However, the
"Confidentiality, Non-Solicitation and Non-Recruitment Agreement" attached
hereto as Exhibit "A" is not superseded and remains in full force and effect.
Such information is recognized and acknowledged by the
Employee to include, but not be limited to the following:
(A) Business Information: (1) customer or prospective customer
lists (contacts, addresses, phone numbers, etc.); (2) cost and/or sales
information; (3) business contacts/relationships; (4) all personnel information;
(5) all recruiting information; (6) information concerning medical or other
employee benefits; (7) all information regarding pending litigation and legal
matters (including, but not limited to, contracts, legislation, information
regarding potential acquisitions and/or regarding the sale of the Company's
business, administrative agency proceedings, etc.); (8) all information which
the Company has covenanted not to disclose; (9) employee lists (including, but
not limited to, names, address, phone numbers, positions, etc.); (10) financial
statements of any kind; and (11) any information related to the Company's
responses to solicitations for possible sales (bids, pricing information, etc.).
(B) Technical Information: (1) schematics; (2) bills of materials;
(3) costs of materials; (4) software source codes; (5) software binary codes;
(6) all mechanical drawings; (7) written/verbal specifications; and (8) other
miscellaneous technical information.
The Employee acknowledges that this confidential, proprietary
information is the exclusive property of the Company or its customers or
suppliers, respectively. The Employee recognizes that any material violation of
this paragraph is likely to result in immediate and irreparable harm to the
Company for which money damages are likely to be inadequate. Accordingly, the
Employee consents to injunctive and other appropriate equitable relief upon the
institution of proceedings by the Company in order to protect the Company's
rights under this paragraph. Such relief shall be in addition to any other
relief to which the Company may be entitled at law or in equity.
6. Employee does hereby for himself and his heirs, executors,
successors, and assigns, release and forever discharge the Company, its
officers, directors, management, representatives, employees, shareholders,
agents, successors, assigns, attorneys and other affiliated persons, both known
and unknown (collectively, "the Releasees") of and from any and all claims,
demands, actions or causes of action, damages, or suits at law or equity, of
whatsoever kind or nature, including, but not limited to, all claims and/or
demands for back pay, reinstatement, hire or re-hire, front pay, group insurance
or employee benefits of whatsoever kind (except on rights expressly provided for
herein), claims for monies and/or expenses, any claims arising out of or
relating to the cessation of Employee's employment with the Company, any claims
for failing to obtain employment at any other Company or with any other person
or employer, and/or demands for attorney's fees and legal expenses that Employee
has or may have by reason of any matter or thing arising out of, or in any way
connected with, directly or indirectly, any act and/or omission that has
occurred prior to the Effective Date of this Agreement.
This release does not apply to Employee's entitlement under pension and
401(k) plans maintained by the Company, or to any of the Company's obligations
under this Agreement.
7. Employee recognizes and understands that, by executing this
Agreement, he shall be releasing the Company and those referred to in paragraph
(6) above from any claims that he now has, may have, or subsequently may have
under the Age Discrimination in Employment Act of 1967, 29 U.S.C. ss.ss.621, et
seq., as amended, by reason of any matter or thing arising out of, or in any way
connected with, directly or indirectly, any acts or omissions which have
occurred prior to and including the Effective Date of this Agreement. In other
words, Employee will have none of the legal rights against the aforementioned
that he would otherwise have under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. ss.ss.621, et seq., as
amended, by his signing this Agreement.
8. Employee and his heirs, executors, successors, assigns,
representatives, shall hold the fact and terms of this Agreement in strict
confidence and shall not communicate, reveal, or disclose the terms of this
Agreement to any other persons except to Employee's immediate family, to legal
counsel, and to tax consultants, all of whom shall be instructed by Employee
similarly to hold the fact and terms of this Agreement in the strictest
confidence, and as required by law.
9. The Company hereby notifies Employee of his right to consult
with his chosen legal counsel before signing this Agreement. The Company shall
afford, and Employee acknowledges receiving, not less than twenty-one (21)
calendar days in which to consider this Agreement to insure that Employee's
execution of this Agreement is knowing and voluntary. In signing below, Employee
expressly acknowledges that he has had at least twenty-one (21) days to consider
this Agreement and that his execution of same is with full knowledge of the
consequences thereof and is of his own free will.
10. Employee warrants and represents that, prior to and including
the Effective Date of this Agreement, no claim, demand, cause of action, or
obligation which is subject to this Agreement has been assigned or transferred
to any other person or entity, and no other person or entity has or has had any
interest in said claims, demands, causes of action, or obligations, and that
Employee has the sole right to execute this Agreement.
11. Both the Company and Employee agree and recognize that, for a
period of seven (7) calendar days following Employee's execution of this
Agreement, Employee may revoke this Agreement by providing written notice
revoking the same, within this seven (7) day period, to Xxxxx X. Xxxxxxx, Human
Resources at the above address of the Company. Such revocation of this Agreement
by Employee will also automatically revoke the acceptance of the offer set forth
herein and Employee will not be entitled to any amounts described herein.
12. Should Employee revoke this Agreement within this seven-day
(7) period, Employee agrees immediately to return all monies and other benefits
cost-wise that he has received from the Company pursuant to this Agreement prior
to the date of such revocation.
13. This Agreement contains the entire agreement between the
parties hereto, and there are no understandings between the parties other than
those specifically and expressly set forth in this Agreement. This Agreement
shall not be amended or modified in any manner except upon written agreement by
the parties.
14. Employee acknowledges and agrees that his election to execute
this Agreement is entirely voluntary, and hereby acknowledges that he has not
been pressured, coerced, or otherwise unduly influenced by the Company to
execute this Agreement.
15. This Agreement shall be governed and interpreted pursuant to
the laws of the State of Georgia.
CAUTION TO EMPLOYEE: READ BEFORE SIGNING. THIS DOCUMENT CONTAINS A RELEASE OF
ALL CLAIMS AGAINST RELEASEES PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
IN WITNESS WHEREOF, Employee and the Company agree as set forth above:
DATE OF RECEIPT OF AGREEMENT SIGNATURE OF EMPLOYEE
BY EMPLOYEE: ACKNOWLEDGING DATE OF RECEIPT:
November 19, 2001 /s/ C. Xxxxxxx Xxxxxx
-------------------------------- --------------------------------------
RECEIPT WITNESSED BY:
/s/ Xxxx Xxxxxxxxx
--------------------------------------
DATE OF EXECUTION BY EMPLOYEE:
(EFFECTIVE DATE OF AGREEMENT AGREED TO AND ACCEPTED BY:
IS 8TH DAY AFTER THIS DATE)
November 23, 2001 /s/ C. Xxxxxxx Xxxxxx
-------------------------------- --------------------------------------
NOTARY PUBLIC:
WITNESSED THIS 23 DAY OF
November, 2001.
/s/ Xxxxx X. Xxxxx
--------------------------------------
DATE OF EXECUTION BY COMPANY: AGREED TO AND ACCEPTED BY
NETZEE, INC.
November 29, 2001 BY: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- ----------------------------------
TITLE: Senior Executive Vice President
-------------------------------
NOTARY PUBLIC:
WITNESSED THIS 29 DAY OF
November, 2001.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
