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SEPARATION AGREEMENT AND RELEASE OF
CLAIMS
This SEPARATION AGREEMENT AND
RELEASE OF CLAIMS (this "Release") is
entered into this 29 th day of January, 2007 by and
between nFinanSe Inc. ("Company") and Clifford Wildes ("Employee"),
(each a "Party" or collectively the "Parties"). In consideration of
the promises and commitments made in this Release, the sufficiency
and fairness of which is hereby acknowledged, Company and Employee
agree as follows:
ARTICLE
1
TERMINATION OF EMPLOYMENT
RELATIONSHIP
1.1 Separation from Company . Company and Employee mutually
agree that Employee’s employment with Company will terminate,
effective as of the date of this Release. Employee has no further
rights, duties or obligations relating to Company or Released
Parties other than as set forth in this Release. Employee
acknowledges that any and all agreements relating to Company or
Released Parties, including the Employment Agreement dated October
1, 2005, (the "Employment Agreement") are hereby cancelled by the
Parties, effective immediately. This Release shall replace all
other agreements relating to Employee, Company and Released Parties
(as defined below).
1.2 Return
of Property . Except for property that is already in the
public domain (such as public records), Employee will return all
Company property in Employee’s possession upon request and if
not specifically requested, on or before Employee’s final
date of employment.
ARTICLE
2
RELEASED PARTIES
The Parties intend this Release to benefit and
release Company and all entities and individuals which are
affiliates of Company including, without limitation any corporation
or entity hereafter controlled by, or under the control of, any of
the above described affiliates or other known affiliates of
Company, their heirs, predecessors, successors, administrators,
assigns, and subsidiaries, and each of their respective officers,
directors, agents, attorneys, and employees and their heirs,
successors, administrators, assigns (collectively, the "Released
Parties").
The Parties intend this Release to benefit and
release Employee and Employee’s family members, heirs, and
administrators (collectively, the "Employee Released
Parties").
ARTICLE
3
RELEASE OF ALL PARTIES
3.1 General
Release . Employee agrees and understands that Employee is
receiving in exchange for Employee’s promises contained in
this Release, something of value to Employee. Employee has
determined that this is a fair exchange. In order for Employee to
receive this consideration, Employee knowingly and voluntarily
releases Released Parties from every possible claim that Employee
can legally waive arising prior to the date of this Release. This
waiver should be construed as broadly as possible to release all
possible claims, debts, obligations, demands, judgments, or causes
of action of any kind whatsoever, whether known or
unknown, that may be waived. However, for
additional clarity, the following is a list of some of the types of
claims included in this Release: all claims in tort (for negligent
or intentional acts), in contract, by statute, for constitutional
violation, for wrongful discharge, discrimination, harassment,
retaliation, or claims of personal injury, for compensatory,
punitive, or other damages, expenses, reimbursements, or costs of
any kind, including but not limited to, any and all claims,
demands, rights, and/or causes of action arising out of employment
with Company or Released Parties, or relating to purported
employment discrimination or violations of civil rights, including,
but not limited to, those arising under Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights
Acts of 1866 and/or 1871, the Family and Medical Leave Act
("FMLA"), the Age Discrimination in Employment Act of 1967
("ADEA"), the Older Workers Benefit Protection Act, the Americans
with Disabilities Act of 1990 ("ADA"), public and private whistle
blower laws, Employee Order 11246, the Equal Pay Act of 1963, the
Rehabilitation act of 1973, the Employee Retirement Income Security
Act of 1974 ("ERISA"), or other benefits laws, or any other
applicable federal, state or local employment discrimination
statute or ordinance or any other claim, whether statutory or based
on common law, arising by reason of Employee’s employment
with Company, investment in Company, and service as a director and
officer of Company or the Released Parties, the separation from
that employment or circumstances related thereto or by reason of
any other matters, cause, or thing whatsoever, from the beginning
of time to the signing of this Release, and specifically releases
any claims that the Released Parties have any obligation to rehire
Employee at any time.
3.2 Age
Discrimination Waiver . In exchange for a portion of the
payments described in this Release, Employee hereby knowingly and
voluntarily waives and releases all rights and claims, known and
unknown, arising under the Age Discrimination in Employment Act of
1967, 290 U.S.C. §621-634, as amended, and the Older Workers
Benefit Protection Act, which Employee might otherwise have had
against any and all of the Released Parties regarding any aspect of
employment with Company up to and including the separation from
employment and signing this Release.
3.3 Company
Release . Company agrees and understands that Company is
receiving in exchange for Company’s promises contained in
this Release, something of value to the Company. Company has
determined that this is a fair exchange. In order for Company to
receive this consideration, Company knowingly and voluntarily
releases the Employee and the Employee Released Parties from every
possible claim that Company can legally waive for actions or
inactions by Employee in his capacity as an officer, director and
employee of Company. This waiver should be construed as broadly as
possible to release all possible claims, debts, obligations,
demands, judgments, or causes of action of any kind whatsoever,
whether known or unknown, that may be waived.
ARTICLE 4
CONFIDENTIALITY
The Parties agree that the terms of this Release,
including information presented and made accessible to the Parties
as part of their respective consideration of this Release, are
confidential, and the Parties agree not to divulge such terms,
other than to their accountants, attorneys, Employee’s family
and the Internal Revenue Service or as required by law. The Parties
acknowledge that to ensure compliance with this Release , each
Party may disclose this Release to third-parties to the extent
necessary to inform the third-parties of the disclosing
Party’s obligations under this Release. The foregoing
covenant not to disclose shall be binding upon Employee and
Company. Employee and Company shall advise those to whom
the
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contents of this Release are disclosed of this
nondisclosure covenant. The agreement of the Parties to be bound by
the covenants contained herein is indicated by the Parties’
signature on this Release. The Parties’ signature on this
Release also indicates each Party’s agreement that this
provision is an important and material element of this Release and
is given in fair exchange for the consideration to each Party under
this Release.
If the law requires any Party to make additional
disclosures of confidential information, the Party required to
disclose the information shall provide the details of such legal
requirement(s) to the other Party as soon as possible and in
advance of the disclosure so that the other Party may make any
legal objections to the disclosure. The Parties agree to work
together to produce a public announcement and press release
concerning Employee’s termination of employment.
ARTICLE
5
PAYMENTS
5.1 Post
Employment Pay . In lieu of the termination payments and
accrued vacation payments set forth in the Employment Agreement,
Company shall pay to Employee the sum of $250,000. The sum shall be
paid in installments as follows:
(a) $30,000
upon the execution of this Release;
(b) $30,000
per month payable monthly for 3 months, with the first payment due
on the date 30 days from the date hereof;
(c) $43,333
per month payable monthly for 3 months, with the first payment due
on the date 30 days following the final payment provided for in
Article 5.1(b) above.
All payments are to be made by Company to
Employee, less ordinary payroll withholdings, in accordance with
Company’s uniform payroll procedures until the final payment
set forth in Article 5.1(c) has been made; provided, however, that
in no event will payment under this Article 5.1 be made later than
March 15, 2008. The Parties acknowledge that the inclusion of the
date of March 15, 2008 in the preceding sentence shall not in any
way be construed as an exception to the Company’s obligation
to make payments to Employee in accordance with the time periods
set forth in subsections 5.1(a), (b) and (c), above.
5.2 Insurance . Employee shall be entitled to COBRA benefits
as required by law.
5.3 Options . Upon termination of Employee’s
employment, Employee shall be entitled to retain all vested options
to purchase Company stock that Employee possesses as of the date of
termination, in accordance with the terms of issuance of such
options. Subject to the terms of issuance of said Options, and
Employee’s deliverance of any required opinions, Company
shall fully cooperate with, and provide all necessary assistance to
Employee when Employee exercises his options or sells his shares in
the Company, including without limitation executing all documents
necessary to effectuate the exercise of any option or the sale of
any shares. As of the date of termination, Employee shall no longer
be entitled to earn additional options or vest in additional
options under Company’s stock option plan.
5.4 No
other payments . Company shall not make any other payments
to or on behalf of Employee, whether in the form of bonuses,
severance, paid time off, profit sharing
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contributions, or otherwise. Employee agrees that
he is not entitled to unemployment compensation and will not seek
unemployment compensation.
ARTICLE 6
POST EMPLOYMENT COOPERATION
6.1 Post-Employment Services. Employee agrees for a period
of two (2) years following the date of this Agreement to assist
Company in any and all reasonable ways, including, but not limited
to: (a) immediately providing any passwords to Company’s
Chief Executive Officer; (b) assisting Company with locating
information and property about which Employee may have knowledge;
(c) responding to questions relating to Company and
Employee’s work as such questions arise; (d) cooperating with
Company in the preparation or defense of any lawsuits or claims
relating to work performed by Employee or with which Employee had
knowledge, including but not limited to the Blackstone litigation;
and (e) communicating about Company in a positive manner subject to
Employee’s obligation to comply with the law and to cooperate
with governmental authorities.
6.2 Claims . The Parties agree that they will not bring any
claim, suit, arbitration, or mediation against any of the Released
Parties, Employee or Employee Released Parties relating to
Employee’s employment, separation from employment, or any
other matter occurring prior to the Effective Date of this Release.
Nothing herein prohibits either Party from complying with the law
and cooperating with appropriate governmental authorities.
6.3 Derogatory State
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