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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made and entered
into this 30th day of December, 1997, by and among SCB Computer Technology,
Inc., a Tennessee corporation ("SCB"), Technology Management Resources, Inc., a
Tennessee corporation and wholly owned subsidiary of SCB (formerly TMR
Acquisition, Inc.) ("TMR"), Marino Holdings, Inc., a Nebraska corporation
(formerly Technology Management Resources, Inc.) ("Marino"), Xxxxxx X. Xxxxxxxx
("Xxxxxxxx"), and Xxxxxx X. Xxxxxxx ("Xxxxxxx").
WITNESSETH:
WHEREAS, SCB, Marino, Marshall, Ruffino, and TMR are parties to that
certain Asset Purchase Agreement dated February 28, 1997 (the "Asset Purchase
Agreement");
WHEREAS, SCB, TMR, and Xxxxxxxx are parties to that certain Employment
Agreement dated February 28, 1997 (the "Employment Agreement");
WHEREAS, the parties hereto desire to modify certain continuing rights
and obligations of the parties under the Asset Purchase Agreement; and
WHEREAS, Xxxxxxxx desires to resign his employment with TMR and SCB,
TMR, and Xxxxxxxx desire to terminate the Employment Agreement under the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. (a) On the Effective Date (as defined herein) of this Agreement, SCB
shall pay to Marino $1,200,000.00 by wire transfer of immediately available
funds in full and final satisfaction of all covenants, duties, and obligations
of SCB and TMR, whether arising on, before, or after the date hereof, contained
in the Asset Purchase Agreement, including any and all obligations to pay any
Earnout Consideration (as defined in the Asset Purchase Agreement) pursuant to
Section 1.4 of the Asset Purchase Agreement. The parties hereto acknowledge and
agree that no determination whether Earnout Consideration is due for the fiscal
year ending April 30, 1998 has been made and that the payment referenced in the
preceding sentence is in full satisfaction and discharge of any obligation on
the part of any party to make such determination or pay any Earnout
Consideration for the fiscal year ending April 30, 1998 or thereafter.
(b) Marshall, Ruffino, and Marino, on behalf of themselves, their
heirs, executors, predecessors, successors, and assigns, do release and forever
discharge the SCB Group (as defined herein) of and from all manner of actions,
causes of action, suits, debts, covenants, contracts, controversies, agreements,
promises, claims, and demands, whatsoever, known and unknown, in law or in
equity, which any of Marshall, Ruffino, or Marino ever had, now has, or may have
against any
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and all of the SCB Group arising out of or relating to the Asset Purchase
Agreement and the transactions contemplated thereby.
(c) SCB and TMR, on behalf of themselves, their predecessors,
successors, and assigns, release and forever discharge Marshall, Ruffino, and
Marino of and from all manner of actions, causes of action, suits, debts,
covenants, contracts, controversies, agreements, promises, claims, and demands,
whatsoever, known or unknown, in law or in equity, which SCB or TMR ever had,
now has, or may have against Marshall, Ruffino, or Marino arising out of the
Asset Purchase Agreement and the transactions contemplated thereby.
2. (a) Effective immediately, Xxxxxxxx hereby resigns and voluntarily
terminates his employment and all positions with TMR and all of its affiliates,
and SCB, TMR and Xxxxxxxx agree that all the obligations of SCB, TMR, and
Xxxxxxxx set forth in the Employment Agreement shall cease and have no further
force or effect on or after the Effective Date hereof and that the Employment
Agreement will be terminated. The parties further agree that, contemporaneously
with the execution of this Agreement, SCB, TMR, and Xxxxxxxx shall execute a
Non-Competition Agreement in the form of Exhibit A hereto.
(b) Xxxxxxxx hereby releases and forever discharges the SCB Group
of and from (i) all manners of action, causes of action, suits, debts,
covenants, contracts, controversies, agreements, promises, claims, and demands,
whatsoever, known and unknown, in law or in equity, which he ever had, now has,
or may have against any and all of the SCB Group arising out of or related to
the Employment Agreement; and (ii) without limiting the generality of the
foregoing, any and all claims against any and all of the SCB Group under any
federal, state, or local law or ordinance, or any administrative regulation
prohibiting employment discrimination and any and all claims based on any legal
restrictions on the SCB Group's right to discipline or to terminate its
employees including, but not limited to, any claim based on any actual or
implied contract of employment. The foregoing release by Xxxxxxxx specifically
encompasses all claims of employment discrimination based on race, color,
religion, sex, and national origin, or claims of retaliation, as provided under
Title VII of the Civil Rights Act of 1964, as amended, or any Executive Order,
all claims of discrimination based on age under the Age Discrimination in
Employment Act of 1967, as amended, all claims of discrimination based on
handicap or disability under the Americans with Disabilities Act, and all claims
of employment discrimination or retaliation under any state or local statute,
law, or ordinance.
(c) SCB and TMR hereby release and forever discharge Xxxxxxxx of and
from all manners of action, causes of action, suits, debts, covenants,
contracts, controversies, agreements, promises, claims, and demands, whatsoever,
known and unknown, in law or in equity, which SCB or TMR ever had, now has, or
may have against Xxxxxxxx arising out of or related to the Employment Agreement.
(d) Xxxxxxxx and the SCB Group agree that neither will say, write,
or communicate in any manner to any person or entity any information derogatory
about the other, regardless of the
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truth or falsity of the information. Specifically, but without limitation, the
SCB Group agrees that in response to requests for professional references on
Xxxxxxxx, the SCB Group will give only a neutral or favorable response, and
Xxxxxxxx agrees not to discuss matters concerning any of the SCB Group with SCB
Group customers, current or former employees of any of the SCB Group, or persons
or firms who have or are considering instituting a working relationship with any
of the SCB Group, or with whom Xxxxxxxx has had a relationship on behalf of any
of the SCB Group in the past.
(e) Xxxxxxxx agrees to cooperate with the SCB Group for a period of two
years following the date hereof and to be available during such period on a
reasonable basis to answer any questions or furnish any information regarding
matters that Xxxxxxxx handled or of which he has knowledge; provided, that such
cooperation will not interfere with Xxxxxxxx'x ability to seek or hold new
employment.
3. On the Effective Date, the Indemnity and Escrow Agreement, dated
February 28, 1997, by and among SCB, TMR, Boatmen's Trust Company (the "Escrow
Agent"), Marino, Marshall, and Xxxxxxx (the "Escrow Agreement") shall be
terminated and the Escrow Fund established pursuant thereto shall be disbursed
to Marino. The parties hereby agree, contemporaneously with the execution of
this Agreement, to execute joint written instructions, in the form attached
hereto as Exhibit B, authorizing and instructing the Escrow Agent to release the
Escrow Fund to Marino. Such joint written instructions shall be delivered to the
Escrow Agent on the Effective Date.
4. This Agreement does not constitute an admission of any kind by SCB
or TMR that either of them, or any of their predecessors, successors, divisions,
affiliated enterprises, related companies, parent companies, subsidiaries,
affiliates, directors, officers, employees, agents, or attorneys (the "SCB
Group") have violated, or have not been in compliance with, any applicable state
or federal law, order, or resolution, including any rule of law or equity, or of
any contractual term, express or implied. Likewise, without limiting the
foregoing, the parties have agreed that this Agreement does not constitute an
admission of any kind that Marino, or any of its affiliated enterprises, related
companies, agents, or attorneys, Xxxxxxxx, or Xxxxxxx have violated, or have not
been in compliance with, any applicable state or federal law, order, or
resolution, including any rule of law or equity, or of any contractual term,
express or implied.
5. Xxxxxxxx acknowledges that he has had a period of twenty-one (21)
days from the date that he received this document in which to consider this
Agreement and that he is being herein advised in writing to consult with his
attorney or other advisor. Each of Marshall, Ruffino, and Marino further state
that each has consulted with his or its respective attorney, that each
understands that this Agreement constitutes a general release, and that each
intends to be bound by the same. Marshall, Ruffino, and Marino acknowledge that,
in considering whether to sign this Agreement, they have not relied upon any
representation or statement, written or oral, not set forth in this Agreement
and that none of them have been threatened or coerced into signing this
Agreement by any official or representative of SCB or TMR. Marino, Marshall, and
Xxxxxxx have each read this Agreement
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carefully and fully understand the terms and consequences or effect of this
Agreement and voluntarily agree to and accept the terms of this Agreement.
6. Xxxxxxxx understands that he may revoke this Agreement at any time
during the seven (7) day period beginning from the date of his execution hereof.
This Agreement shall not become effective until such seven (7) day period has
expired (the "Effective Date").
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and date set forth above.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
MARINO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: President
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SCB COMPUTER TECHNOLOGY, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: Chief Administrative Officer
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TECHNOLOGY MANAGEMENT RESOURCES, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: Secretary
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