Exhibit 10.67
SEPARATION AGREEMENT AND
RELEASE
This Separation
Agreement and Release (the “Agreement”) is effective as
of February 12, 2007 (the “Effective Date”) by and
between Tier Technologies, Inc., (the “Company”) and
Todd F. Vucovich (the “Employee”) (collectively the
“parties”).
WHEREAS, the
parties have mutually agreed to resolve the Employee’s
separation from the Company and establish the terms of the
Employee’s severance arrangement; and
WHEREAS, the
parties wish to enter into this Agreement that will terminate and
supersede the Nondisclosure and Proprietary/Confidential
Information Non-Competition Agreement the Employee executed on
December 2, 2004 (the “Nondisclosure
Agreement”);
NOW, THEREFORE,
in consideration of the promises and conditions set forth herein,
the sufficiency of which is hereby acknowledged, the Company and
the Employee agree as follows:
1.
Separation Date . The Employee’s effective
date of separation from the Company will be at the sole discretion
of the Company, but in any event no later than November 30, 2007
(the “Separation Date”).
2.
Transition Period . The period beginning on the
Effective Date through and including the Separation Date shall be
the Transition Period. During the Transition Period, the
Employee shall remain employed by the Company and shall receive the
same salary, paid leave (PTO) and other benefits he is currently
receiving; provided , however , that the Employee
shall not be eligible for or have any right to any bonus or
pro-rata portion of any bonus for fiscal years 2006, 2007 or
2008. The Employee shall also retain his current
accrued, unused PTO balance, if any. In exchange for
such salary and benefits, the Employee agrees that he shall use his
best efforts to diligently perform projects and tasks associated
with the orderly management of the PSSI SBU, including any
restructuring or other strategic activities. The
Employee will be directed by Ronald L. Rossetti,
Chief Executive Officer of the Company, and shall perform his
duties during the Company’s regular business hours
provided , however , that the Company shall permit
the Employee a reasonable amount of time during the Transition
Period to engage in activities associated with the Employee’s
search for other employment. The Employee shall work out
of the Company’s Reston, VA office. The Employee
must comply with all rules, policies and practices of the Company
and any additional directions or instructions provided to him by
Mr. Rossetti throughout the Transition Period.
3. Stock
Options . Each option to purchase shares of the
Company’s Class B Common Stock under the Company’s
Amended and Restated 1996 Equity Incentive Plan and the Amended and
Restated 2004 Stock Incentive Plan (the “Plans”) held
by the Employee (collectively, the “Options”) shall
continue to be governed by the Plans and the terms of its
respective option agreement between the Employee and the
Company.
4.
Consideration .
(a) In
return for the execution of this Agreement, the Company agrees to
pay the Employee $25,000 as reimbursement for certain relocation
expenses incurred in connection with the sale of the
Employee’s residence in Northern Virginia, less all
applicable federal and state taxes and withholdings
within seven (7) business
days.
(b) Upon
the Separation Date, provided the Employee has executed the Release
Agreement attached as Exhibit A hereto (the “Release
Agreement”); and provided that the Employee has
complied with all conditions set forth in this Agreement;
and provided the Employee has not been terminated by the
Company for cause; and provided the Employee has not
voluntarily resigned during the Transition Period, the Company
agrees to provide the Employee with the following
consideration:
(i)
The Company agrees to pay the Employee as severance pay one hundred
twenty two thousand dollars ($122,000) in a lump sum, less all
applicable state and federal taxes and
withholdings. This amount represents six (6) months of
the Employee’s current base salary ($110,000) and twelve (12)
months reimbursement for COBRA expenses ($12,000);
(ii) The
Company agrees to pay the Employee a further seventy-five thousand
dollars ($75,000) as reimbursement for certain relocation expenses
incurred in connection with the sale of the Employee’s
residence in Northern Virginia, less all applicable federal and
state taxes and withholdings; and
(iii) The
Company agrees to reimburse the Employee for up to seven thousand
five hundred dollars ($7,500) for executive out-placement
services.
The payments in Paragraph 4(b) shall be paid following the eighth
(8th) day after execution of the Release Agreement, provided that
the Employee does not revoke the Release Agreement and has complied
with all of the terms and conditions of this
Agreement.
5.
Execution of this Agreement and the Release Agreement
. Employee agrees that he is entering into this
Agreement knowingly and voluntarily and with full knowledge of its
significance and is hereby advised to consult with an attorney
before he executes this Agreement. The Employee
must execute the Release Agreement after close of business on the
Separation Date and provide an executed copy to
Mr. Rossetti. The Employee acknowledges that he may
not execute the Release Agreement prior to close of business on the
Separation Date, unless terminated earlier. The Employee
also acknowledges that the consideration described herein is
adequate and sufficient consideration for entering into this
Agreement and the Release Agreement.
6.
Release . In exchange for the consideration,
which the Employee acknowledges he would not otherwise be entitled
to receive, the Employee hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company, its
officers, directors, stockholders, affiliates, subsidiaries, parent
companies, agents and employees (each in their individual and
corporate capacities) (hereinafter, the “Released
Parties”) from any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions,
obligations, liabilities and expenses (including attorneys’
fees and costs), of every kind and nature that the Employee ever
had or now has against any or all of the Released Parties,
including, but not limited to, all claims arising out of his
employment with and/or separation from the Company including, but
not limited to, all employment discrimination claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq . , the Americans With Disabilities Act of 1990, 42
U.S.C. § 12101 et seq. , the Family and Medical
Leave Act, 29
U.S.C. § 2601 et seq. , the Virginia Human
Rights Act, Va. Code § 2.2-3900 et seq. ,
Va. Code
Ann. § 51.5-40 et seq. (Virginia rights of
persons with disabilities law), Va. Code § 40.1-28.6
(Virginia equal pay law) and Va. Code §§ 40.1-51.2:1
et seq. and 40.1-51.4:5 (Virginia whistleblower
protection law), all as amended, all claims arising out of the Fair
Credit Reporting Act, 15 U.S.C. § 1681 et seq
. and the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq.
, all as amended, all common law claims including, but not limited
to, actions in tort, defamation and breach of contract (including,
without limitation, claims arising out of or related to the
Nondisclosure Agreement), all claims to any non-vested ownership
interest in the Company, contractual or otherwise, including, but
not limited to, claims to stock or stock options, and any claim or
damage arising out of the Employee’s employment with and/or
separation from the Company (including a claim for retaliation)
under any common law theory or any federal, state or local statute
or ordinance not expressly referenced above; provided ,
however , that nothing in this Agreement prevents the
Employee from filing, cooperating with, or participating in any
proceeding before the EEOC or a state Fair Employment Practices
Agency (except that the Employee acknowledges and understands that
he may not be able to recover any monetary benefits in connection
with any such claim, charge or proceeding.)
Employee expressly acknowledges and understands that he is
knowingly and voluntarily waiving any and all rights to pursue an
action under the Age Discrimination in Employment Act and that the
consideration given for the release in this Paragraph 6 is in
addition to anything of value to which Employee was already
entitled. Employee hereby provides further
acknowledgment, and is advised, as required by the Older Workers
Benefit Protection Act, that:
(a) The
waiver and release do not apply to any rights or claims that may
arise after the date Employee signs this Agreement;
(b)
Employee has been and is hereby advised to consult an attorney
concerning this Agreement prior to executing it (although Employee
is not required to do so);
(c)
Employee has twenty-one (21) days to consider the terms of this
Agreement and by executing this Agreement prior to the end of the
twenty-one (21) day period, Employee has voluntarily waived said
period;
(d) Employee
may revoke this Agreement at any time during the seven (7) days
following the date he executes this Agreement, and that this
Agreement shall not become effective or enforceable until such
seven (7) day revocation period has expired (the “Effective
Date”). If Employee revokes this Agreement,
Employee shall not receive any of the benefits of this Agreement
contained herein. Any changes made to this Agreement
during the twenty-one (21) days in which Employee may consider it,
whether material or not, will not start the re-running of the
twenty-one (21) day period.
7.
Nonsolicitation and Confidential Information
. The Employee acknowledges and agrees
that:
(a)
Nonsolicitation . For the period of
two (2) years from the date of termination of the Employee’s
employment for any reason, the Employee shall not, directly or
indirectly:
(i) employ
or solicit for employment any person whom the Employee knows to be
an employee of the Company or any subsidiary of the Company or
induce or
attempt to induce any such person to terminate his or her
employment with the Company or such subsidiary; or
(ii) seek
in competition with the Company to procure orders from or do
business with, or procure directly or indirectly any other person
to procure orders from or do business with, any person or entity
who has been a client or prospective client of the Company as of
the termination of the Employee’s employment for any
reason.
(b)
Confidential Information .
(i) The
Employee acknowledges that the Confidential Information (as defined
below) of the Company is valuable, special and unique to the
Company, that the Company depends on such Confidential Information
and that the Company wishes to protect such Confidential
Information by keeping it confidential for the use and benefit of
the Company. Based on the foregoing, the Employee
undertakes:
(A) to
keep any and all Confidential Information in trust for the use and
benefit of the Company;
(B) except
as required by the Employee’s duties hereunder or as may be
authorized in writing by the Company, not at any time during and
after the termination of the Employee’s employment for any
reason to disclose or use, directly or indirectly, any Confidential
Information of the Company;
(C) to
take all reasonable steps necessary or reasonably requested by the
Company to ensure that all Confidential Information of the Company
is kept confidential for the use and benefit of the Company;
and
(D) upon
termination of the Employee’s employment with the Company or
at any other time the Company may request, to promptly deliver to
the Company all materials constituting Confidential Information
(including all copies thereof) that are in the Employee’s
possession or under the Employee’s control.
(ii) For
purposes of this Paragraph 7, “Confidential
Information” means any and all information developed by or
for the Company of which the Employee gained knowledge by reason of
the Employee’s employment with the Company that is not
generally known in the industry in which the Company is or may
become engaged. Confidential Information includes, but
is not limited to, any and all information, processes, ideas or
know-how that: (A) are not generally known in the
industry; (B) the Company considers confidential; (C) gives the
Company a competitive advantage; (D) affects or relates to the
Company, its business or
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