Exhibit 10.22
SEPARATION AND RELEASE AGREEMENT
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This Separation and Release Agreement (the "Agreement"), dated this 26th
day of November, 2001, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and Open Plan
Systems, Inc., a Virginia corporation (the "Company") provides:
1. Termination of Employment; Separation Benefits.
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▇▇▇▇▇▇'▇ employment terminated effective November 26, 2001 ("Termination
Date") pursuant to ▇▇▇▇▇▇'▇ voluntary resignation. In consideration of ▇▇▇▇▇▇'▇
acceptance of this Agreement, the Company shall pay to ▇▇▇▇▇▇ a gross sum
equivalent to four (4) months' salary continuation at Employee's last regular
rate of pay. This sum shall be paid to Employee in regular installments over a
four-month period, each coinciding with the Company's regularly scheduled pay
days and commencing with the first pay day following the Effective Date of this
Agreement (as hereinafter defined). ▇▇▇▇▇▇ hereby agrees that the Company will
deduct from such payment all withholding taxes and other payroll deductions that
the Company is required by law to make from wage payments to employees. ▇▇▇▇▇▇
hereby further agrees that the payments and performances described in this
Agreement are all that ▇▇▇▇▇▇ shall be entitled to receive from the Company
except for vested qualified retirement benefits, if any, to which ▇▇▇▇▇▇ may be
entitled under the Company's ERISA plans.
2. No Obligation to Make Payment under Normal Policies.
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▇▇▇▇▇▇ hereby agrees and acknowledges that the benefits set forth in the
first Paragraph of this Agreement are more than the Company is required to do
under its normal policies and procedures and that they are in addition to
anything of value to which ▇▇▇▇▇▇ already is entitled.
3. Complete Release.
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▇▇▇▇▇▇ hereby knowingly and voluntarily releases and forever discharges the
Company, any related companies, and the former and current employees, officers,
agents, directors, shareholders, investors, attorneys, affiliates, successors
and assigns of any of them (the "Released Parties") from all liabilities,
claims, demands, rights of action or causes of action ▇▇▇▇▇▇ had, has or may
have against any of the Released Parties, including but not limited to any
claims or demands based upon or relating to ▇▇▇▇▇▇'▇ employment with the Company
or the termination of that employment. This includes but is not limited to a
release of any rights or claims ▇▇▇▇▇▇ 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 Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; the Age Discrimination in
Employment Act of 1967, which prohibits age discrimination in employment; the
Americans with Disabilities Act, which prohibits discrimination against
otherwise qualified disabled individuals; the Virginia Human Rights Act, which
is a state statute prohibiting, among other things, employment discrimination;
or any other federal, state or local laws or regulations prohibiting employment
discrimination. This also includes but is not limited to a release by ▇▇▇▇▇▇ of
any claims for wrongful discharge, breach of contract, or any other statutory,
common law, tort or contract claim that ▇▇▇▇▇▇ had, has or may have against any
of the Released Parties. This release covers both claims that ▇▇▇▇▇▇ knows about
and those ▇▇▇▇▇▇ may not know about.
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This release does not include, however, a release of ▇▇▇▇▇▇'▇ right, if
any, to payment of vested qualified retirement benefits under the Company's
ERISA plans and the right to continuation in Company medical plans as provided
by COBRA.
4. No Future Lawsuits.
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▇▇▇▇▇▇ promises never to file a lawsuit asserting any claims that are
released in Paragraph 3. ▇▇▇▇▇▇ further agrees that, in the event he breaches
this Paragraph 4, he shall pay to the Company all of its expenses incurred as a
result of such breach, including but not limited to, reasonable attorney's fees
and expenses.
5. Disclaimer of Liability.
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This Agreement and the payments and performances hereunder are made solely
to assist ▇▇▇▇▇▇ 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.
6. Confidential Information/Non-Solicitation
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▇. ▇▇▇▇▇▇ covenants and agrees that he shall not use, divulge, publish or
disclose to any person or organization, confidential information obtained by
▇▇▇▇▇▇ during the course of ▇▇▇▇▇▇'▇ employment or related to ▇▇▇▇▇▇'▇ cessation
of employment ("Confidential Information"). The Confidential Information
consists of the following: (a) the existence and terms of this Agreement itself;
(b) personal, financial, private or sensitive information concerning the
Company's executives, employees, customers and suppliers; (c) information
concerning the Company's sources of business contacts, business records,
customer lists or other client
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information, business documents and forms, customer contracts, pricing and
customer service requirements; (d) information concerning the Company's
formulas, designs, methods of business, trade secrets, technology, business
operations, business records and files; and (e) any other non-public information
which, if used, divulged, published or disclosed by ▇▇▇▇▇▇, would be reasonably
likely to provide a competitive advantage to a competitor or to cause any of the
Company's executives or employees embarrassment. ▇▇▇▇▇▇ further agrees to return
immediately to the Company all of the Company's property, if any, in ▇▇▇▇▇▇'▇
possession or under ▇▇▇▇▇▇'▇ control. Notwithstanding the restrictions contained
in this Subsection A, ▇▇▇▇▇▇ shall be permitted to make necessary disclosures to
members of his immediate family or his attorneys and advisors concerning the
terms of this Agreement.
B. For a period of two (2) years from and after the date upon which
▇▇▇▇▇▇'▇ employment with the Company ceases, ▇▇▇▇▇▇ covenants and agrees that he
will not directly or indirectly, for himself or for the benefit of another:
(i) solicit any person or entity who, during the twelve month period
immediately preceding the date upon which ▇▇▇▇▇▇'▇ employment with the Company
ceased, paid or engaged the Company for products or services of any type or who
received the benefit of the Company's services ("Customer") to withdraw, curtail
or cancel his business with the Company;
(ii) do any other act which may result in the impairment of the
relationship between any Customer or supplier and the Company;
(iii) agree to perform or perform services of any type that the
Company can render for any Customer; or
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(iv) induce or influence, or attempt to induce or influence, any
person who is an employee, agent, independent contractor, partner, officer or
director of the Company to terminate his or her relationship with the Company
for the purpose of obtaining employment or otherwise contracting with ▇▇▇▇▇▇ or
a competitor of the Company.
B. The parties hereto agree that given the nature of the positions held
by ▇▇▇▇▇▇ with the Company, the covenants and restrictions set forth in
Subsections A and B above are reasonable and necessary for the protection of the
significant investment of the Company in developing, maintaining and expanding
its business. Accordingly, the parties hereto agree that in the event of any
breach by ▇▇▇▇▇▇ of any of the provisions of Subsections A or B that monetary
damages alone will not adequately compensate the Company for its losses and
therefore it is entitled to injunctive relief. In addition, the Company is
entitled to recover from ▇▇▇▇▇▇ all damages, including actual and consequential
damages, costs and expenses, including legal costs and actual attorney's fees,
incurred by it as a result of such breach.
7. Claim for Reinstatement.
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▇▇▇▇▇▇ agrees to waive and abandon any claim to reinstatement with the
Company. ▇▇▇▇▇▇ further agrees not to apply for any position of employment
with the Company and agrees that this Agreement shall be sufficient
justification for rejecting any such application.
8. Statements Regarding Company and/or Employment.
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▇▇▇▇▇▇ agrees not to do or say anything that reasonably may be expected to
have the effect of criticizing or disparaging the Company, any director of the
Company, any of the Company's employees, officers or agents, or diminishing or
impairing the goodwill and
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reputation of the Company or the products and services it provides.
▇▇▇▇▇▇ further agrees not to assert that any current or former employee, agent,
director or officer of the Company has acted improperly or unlawfully with
respect to ▇▇▇▇▇▇ or any other person regarding employment.
9. Other Promises.
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▇. ▇▇▇▇▇▇ agrees that, unless compelled by law, ▇▇▇▇▇▇ shall not,
directly or indirectly, assist any person or entity in connection with any
potential or actual litigation against the Company or any other of the Released
Parties described in Paragraph 3 hereof.
▇. ▇▇▇▇▇▇ agrees that: (i) he shall not solicit Company proxies, or
participate in an election contest for Company directors or assist, counsel or
communicate with any other person in connection with any such proxy solicitation
or proxy contest; (ii) he shall not deposit Company voting shares in a voting
trust or subject Company shares to a voting agreement; (iii) he shall not
initiate or solicit shareholder proposals, and he shall not participate in,
assist, or support any effort to do so; and (iv) he shall not take, participate
in, or support any action to acquire or affect control of Company or to
encourage or assist any other person or entity to do so. However, nothing in
this Paragraph shall prohibit ▇▇▇▇▇▇ from voting or selling any Company shares
that he owns on the date hereof.
10. Non-Release of Future Claims.
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This Agreement does not waive or release any rights or claims that ▇▇▇▇▇▇
may have under the Age Discrimination in Employment Act or other law which arise
after the date that ▇▇▇▇▇▇ signs this Agreement.
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11. Period for Review and Consideration of Agreement.
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▇▇▇▇▇▇ understands that ▇▇▇▇▇▇ has been given a period of twenty-one (21)
days to review and consider this Agreement before signing it. ▇▇▇▇▇▇ further
understands that ▇▇▇▇▇▇ may use as much of this 21-day period as ▇▇▇▇▇▇ wishes
prior to signing.
12. Encouragement to Consult with Attorney.
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▇▇▇▇▇▇ is encouraged to consult with an attorney before signing this
Agreement. ▇▇▇▇▇▇ represents that he has, in fact, done so.
13. ▇▇▇▇▇▇'▇ Right to Revoke Agreement.
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▇▇▇▇▇▇ may revoke this Agreement within seven (7) days of ▇▇▇▇▇▇'▇ signing
it. Revocation can be made by delivering a written notice of revocation to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. at Williams, Mullen, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. For this revocation to be
effective, written notice must be received by ▇▇. ▇▇▇▇▇▇ no later than the close
of business on the seventh day after ▇▇▇▇▇▇ signs this Agreement. If ▇▇▇▇▇▇ has
not revoked the Agreement, the eighth (8/th/) day after ▇▇▇▇▇▇ signs this
Agreement shall be the Effective Date for purposes of this Agreement.
14. Acknowledgment.
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▇▇▇▇▇▇ acknowledges that he has signed this Agreement freely and
voluntarily without duress of any kind.
15. Entire Agreement.
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This Agreement contains the entire understanding of ▇▇▇▇▇▇ and the Company
concerning the subjects it covers and it supersedes all prior understandings and
representations. The
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Company has made no promises to ▇▇▇▇▇▇ other than those set forth herein. This
Agreement may not be modified or supplemented except by a subsequent written
agreement signed by all parties.
16. 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.
17. Governing Law.
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This Agreement shall be governed by the laws of the Commonwealth of
Virginia.
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▇▇▇▇▇▇ 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.
12-17-01 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
COMMONWEALTH OF VIRGINIA
City/County of Chesterfield, to-wit:
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Subscribed and sworn to me this 17 day of December, 2001, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Notary Public
My commission expires: 8/31/2003
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OPEN PLAN SYSTEMS, INC.
12/17/01 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
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Date
Its: President & CEO
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COMMONWEALTH OF VIRGINIA
City/County of Henrico, to-wit:
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Subscribed and sworn to me this 17/th/ day of Sept., 2001, by ▇▇▇▇▇▇ ▇▇▇▇▇▇.
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Notary Public
My commission expires: 12/31/2001
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