Exhibit 10.1
SEVERANCE AND RELEASE AGREEMENT
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This Severance and Release Agreement (the "Agreement"), dated as of
this 1st day of July 2000, by and between Xxxxxxx X. Xxxxxxxx ("Employee") and
OPEN PLAN SYSTEMS, INC., a Virginia corporation ("the Company"), provides:
1. Termination of Employment; Severance Benefits
---------------------------------------------
Employee's employment shall terminate on July 1, 2000. In consideration
of Employee's acceptance of this Agreement, the Company will pay Employee the
following benefits:
The Company agrees to pay Employee a gross sum equivalent to six (6)
months salary continuation at Employee's last regular rate of pay. This sum
shall be paid to Employee in thirteen (13) equal installments corresponding to
the Company's normal payroll dates beginning the Effective Date noted below. The
Company will also reimburse Employee for any group health insurance premiums
paid by Employee pursuant to Consolidated Omnibus Budget Reconciliation Act of
1986 ("COBRA") for coverage through the six (6) months following the termination
of the Employee's employment.
Employee understands that prior to payment of the salary continuation,
the Company will deduct from the gross sum all federal withholding taxes and
other payroll deductions the Company is required to make from wage payments to
employees. Employee further understands that this amount, and the
indemnification entitlement pursuant to Paragraph 9, are all the Employee is
entitled to receive from the Company except for payments for any accrued but
unused vacation days and pension or other retirement benefits, if any, to which
the Employee may be entitled under the Company's standard retirement program.
1. No Obligation to Make Payment under Normal Policies
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Employee agrees that this payment is more than the Company is required
to pay under it's normal policies and procedures.
2. Complete Release
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Employee agrees to release the Company and any other related companies,
and the employees, officers, agents and directors of any of them from all claims
or demands Employee may have based on Employee's employment with the Company or
the termination of that employment. This includes but is not limited to a
release of any rights or claims Employee may have under Title VII of the Civil
Rights Act of 1964, which prohibits discrimination in employment based on race,
color, national origin, religion or sex; the Age Discrimination in Employment
Act of 1967, which prohibits discrimination in employment based on age, the
Equal Pay Act, which prohibits paying men and women unequal pay for equal work;
the Americans with Disabilities Act, which prohibits discrimination against
otherwise qualified disabled individuals, or any other federal, state or local
laws or regulations prohibiting employment discrimination. This also includes
but is not limited to a release by Employee of any claims for wrongful discharge
or breach of contract. This release covers both claims that Employee knows about
and those the Employee may not know about. This release does not include,
however, a release of Employee's right, if any, to payment from ERISA benefits
under the Company's standard retirement program, and the right to continuation
in Company medical plans as provided by COBRA.
3. No Future Lawsuits
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Employee promises never to file a lawsuit asserting any claims that are
released in paragraph 3 above.
4. Disclaimer of Liability
-----------------------
This agreement and the payments and performances hereunder are made
solely to assist Employee in making the transition from employment with the
Company, and are not and shall not be construed to be an admission of liability,
an admission of the truth of any fact, or a declaration against interest on the
part of the Company.
5. Confidential Information
------------------------
Employee shall not use or divulge, publish or disclose to any person or
organization, any confidential or sensitive information obtained by Employee
during the
course of Employee's employment. Such information expressly includes, but is not
limited to, this Agreement itself, and non-public and proprietary information
concerning the Company's formulas, designs, methods of business, trade secrets,
technology, business operations, business records, customer lists and other
customer information. Employee further agrees to return immediately to the
Company all of the Company's property, including but not limited to all cellular
phones, computer equipment, keys, credit cards, records, files, and other
documentation of whatever nature relating to the Company's business or to the
business of any of the Company's customers.
6. Claim for Reinstatement
-----------------------
Employee agrees to waive and abandon any claim to reinstatement with
the Company.
7. Statements Regarding Company
----------------------------
Employee agrees not to make any derogatory statement with regard to the
performance, character, or reputation of the Company, its personnel and any and
all related companies, or assert that any current or former employee, agent,
director or officer of same has acted improperly or unlawfully with respect to
Employee regarding employment. The Company agrees, that upon the Employee's
request, the Company will promptly provide a neutral performance reference to
prospective employers.
8. Indemnification
---------------
The Company hereby confirms that notwithstanding Employee's status as a
former employee, for acts on behalf of the Company occurring during Employee's
tenure as an employee and officer of the Company, Employee will be entitled to
indemnity and advances for expenses afforded employees and officers under the
Company's Articles of Incorporation to the fullest extent permitted under
applicable law.
9. Period for Review and Consideration of Agreement
------------------------------------------------
Employee understands that the Employee has been given a period of
twenty-one (21) days to review and consider this Agreement before signing it.
Employee further
understands that Employee may use as much of this twenty-one (21) day period as
Employee wishes prior to signing. The twenty-one (21) day period shall commence
upon receipt by Employee of this Agreement.
10. Employee's Right to Revoke Agreement
------------------------------------
Employee may revoke this Agreement with seven (7) days of Employee's
signing it. Revocation may be made by delivering a written notice of revocation
to the Company at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx X, Xxxxxxxx, Xxxxxxxx 00000;
Attn: Xxxx X. Xxxxx, Chief Financial Officer. For this revocation to be
effective, written notice must be received by the Company no later than the
close of business on the seventh day after the Employee signs this agreement. If
Employee revokes this agreement, it shall not be effective or enforceable and
Employee will not receive the benefits described in Paragraph 1 of the
Agreement. In no event shall this Agreement be effective or enforceable until
after the period during which Employee may revoke it (the "Revocation Period");
therefore, the eighth day following the date on which Employee signs this
Agreement shall be the "Effective Date" of this Agreement, unless Employee has
revoked the Agreement during the Revocation Period, in which case it shall not
be effective of enforceable.
11. Encouragement to Consult with Attorney
--------------------------------------
Employee has been encouraged to consult with an attorney before signing
this Agreement, and understands that whether or not to do so is Employee's own
decision.
12. Acknowledgement
---------------
Employee acknowledges that they have signed this Agreement freely and
voluntarily without duress of any kind.
13. Entire Agreement
----------------
This Agreement constitutes the entire Agreement between Employee and
the Company related to severance of employment. The Company has made no promises
to Employee other than set forth herein.
14. Successorship
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It is the intention of the parties that the provisions hereof be
binding upon the parties, their employees, affiliates, agents, heirs, successors
and assigns forever.
15. Governing Law
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This Agreement shall be governed by the laws of Commonwealth of
Virginia.
EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND IS
VOLUNTARILY ENTERING INTO IT. PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
7/5/00 /s/ Xxxxxxx X. Xxxxxxxx
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Date Xxxxxxx X. Xxxxxxxx
OPEN PLAN SYSTEMS, INC.
7/5/00 By: /s/ Xxxx X. Xxxxx
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Date Xxxx X. Xxxxx
CEO
