Execution Copy
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated as of August 11, 1997 ("Agreement"), is by
and between InteliData Technologies Corporation, a Delaware corporation
("InteliData") and Xxxx X. Xxxxxx, Xx. ("Xxxxxx").
WHEREAS, Xxxxxx has been an employee of InteliData and its predecessors
since January 20, 1985.
WHEREAS, InteliData has promoted and desires to continue to employ Xxxxxx
as President and Chief Executive Officer and Xxxxxx desires to continue his
employment in such capacity1;
NOW, THEREFORE, InteliData and Xxxxxx, in consideration of the mutual
covenants and promises contained herein, do hereby agree as follows:
1. Acceptance of Employment. Subject to the terms and conditions set
forth below, InteliData agrees to employ Xxxxxx and Xxxxxx accepts such
employment.
2. Term. The period of employment shall be from the date first written
above through December 31, 2000, unless further extended or sooner terminated as
hereinafter set forth. Such employment period shall be automatically extended
for successive eighteen month terms on January 1, 2001 and following the
expiration of each extension term unless InteliData has provided Xxxxxx, or
Xxxxxx has provided InteliData, with at least six months prior written notice of
their intention to allow this agreement to expire at the end of such initial or
extended term, in which event the employment period will terminate on the last
day of such term.
3. Position and Duties. Xxxxxx shall serve as President and Chief
Executive Officer of InteliData with the duties described in InteliData's
By-Laws, as in effect on the date hereof. Xxxxxx may serve on the board of
directors of other companies with the prior approval of InteliData's Chairman of
the Board of Directors. Xxxxxx shall devote substantially all of his working
time and attention to the business and affairs of InteliData. During the term of
this Agreement, InteliData shall annually nominate, and take such action as may
be necessary or appropriate to seek stockholder election of Xxxxxx to
InteliData's Board of Directors. Xxxxxx agrees to resign from the Board of
Directors in connection with, and effective upon, termination of his employment
with InteliData.
4. Compensation and Related Matters.
(a) Base Salary. Xxxxxx shall receive a base salary of $350,000 per
annum payable in accordance with the payroll procedures for InteliData's
salaried employees in effect during the term of this Agreement.
(b) Eligibility for Bonuses. Xxxxxx shall be eligible to receive an
annual bonus of up to 75% of his base salary in effect at the time. In addition,
Xxxxxx shall be entitled to participate in all bonus and incentive compensation
plans or arrangements hereinafter made available by InteliData to its officers
and directors.
(c) Performance Stock Options.
(i) Xxxxxx shall be granted options to purchase 600,000 shares
of Common Stock, par value $0.001 per share of InteliData ("Common Stock")
pursuant to the InteliData Technologies Corporation 1996 Incentive Plan (the
"Plan"), as set forth in the Stock Option Agreement between InteliData and
Xxxxxx of even date herewith (the "Option Agreement"), a copy of which is
attached as Exhibit A hereto.
(ii) Xxxxxx agrees to hold 25,000 shares of InteliData Common
Stock for the balance of the term of this Agreement (and for any renewals
thereof.) For purposes of this Agreement, any shares of InteliData common stock
owned by members of Xxxxxx' immediate family (i.e., spouse, sons or daughters)
or any trust for the benefit of or partnership consisting of partners limited to
such persons shall be counted toward Xxxxxx' InteliData stock ownership and
holding requirements.
InteliData agrees that each option agreement with respect to options
to purchase Common Stock granted prior to the date hereof shall be amended such
that (i) the definition of "Change in Control" for purposes of any such
agreements and options shall have the meaning assigned to such term in the
Option Agreement, and (ii) all terms and conditions of such options (other than
exercise price, vesting and term absent acceleration) shall be as set forth in
the Option Agreement.
(d) Business Expenses. Xxxxxx shall be entitled to reimbursement of
reasonable and ordinary business-related expenses consistent with InteliData's
policies in effect from time to time.
(e) Fringe Benefits. In addition to any benefits specifically set
forth herein, Xxxxxx shall be entitled to all employee benefits made available
now or in the future to other officers of InteliData. In the event this
Agreement is terminated by either party for any reason (other than death or for
Cause), Xxxxxx may participate in InteliData's life, disability, health, dental,
accident and other benefit programs following such termination for one year for
each year of service since January 1985 (pro rated in the case of a partial
year), at no higher cost to Xxxxxx than Xxxxxx' costs immediately prior to the
date of termination, or until Xxxxxx obtains comparable coverage at a comparable
cost with a future employer. In the event the Company's plans do not permit
continued participation by Xxxxxx after his termination, then Xxxxxx will
instead be entitled to a lump sum payment from InteliData of the expected cost
to Xxxxxx to purchase and continue all such benefit programs, as an individual
or family policyholder, grossed up for all local, state and Federal taxes at the
maximum tax rates, for a coverage period of three years.
(i) InteliData shall allow Xxxxxx at his request to use company
aircraft for personal travel for up to 100 flight hours per year, provided that
InteliData business travel shall have priority of use over Xxxxxx' personal
travel requirements. Xxxxxx shall reimburse InteliData for his use of company
aircraft hereunder at the Standard Industry Fare Level ("SIFL"), set by the
Department of Transportation from time to time as required by IRS Rules Section
1.61-21(g).
(ii) InteliData shall reimburse Xxxxxx on an annual basis for the
premiums paid by Xxxxxx with respect to a $5,000,000 term life insurance policy
(which policy shall be owned by Xxxxxx), plus an amount sufficient to pay all
federal, state and local taxes applicable to such payment.
(iii)InteliData shall reimburse Xxxxxx on an annual basis for
premiums paid by Xxxxxx with respect to a disability policy selected by Xxxxxx
providing for benefits of up to 75% of Xxxxxx' average annual compensation
(calculated in accordance with the terms of such policy), plus an amount
sufficient to pay all federal, state and local taxes applicable to such payment.
(f) Vacations. Xxxxxx shall be entitled to paid vacation in each
calendar year consistent with the InteliData vacation policy applicable to
executive officers of the rank of Vice President and above (currently 5 weeks
per calendar year, with full tenure credit since January 1985). Xxxxxx shall be
entitled to all paid holidays observed by InteliData.
(g) Indemnification; D&O Insurance. InteliData shall provide (or
cause to be provided) to Xxxxxx indemnification against all expenses (including
direct payment by InteliData of attorneys' fees through attorneys selected by
Xxxxxx), judgments, fines and amounts paid in settlements in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of InteliData or any of its predecessors, affiliates or subsidiaries,
including without limitation Colonial Data Technologies, Inc.(including all
subsidiaries of Colonial Data Technologies, Inc.,) WorldWide Telecom Partners,
US Order, Inc., WorldCorp, Inc., VISA Interactive and Home Financial Network
("HFN")) by reason of his being or having been an officer, director or employee
of InteliData or any affiliated entity, advance expenses (including attorneys'
fees) incurred by Xxxxxx in defending any such civil, criminal, administrative
or investigative action, suit or proceeding and maintain directors' and
officers' liability insurance coverage (including coverage for
securities-related claims) upon substantially the terms and conditions set forth
in Exhibit B hereto (the "Indemnity Agreement"). The provisions of this Section
4(g) shall indefinitely survive termination of this Agreement and Xxxxxx'
employment hereunder with respect to acts and events occurring prior to and
through the date of termination.
(h) Retirement Benefit. InteliData agrees that upon termination of
this Agreement or Xxxxxx' employment hereunder for any reason by either party,
other than a termination for Cause, it shall pay to Xxxxxx a lump sum payment
equal to the undiscounted value of the actuarial equivalent of a straight life
annuity for a married non-smoking male at age fifty-five through age eighty in
the amount of $5,000 for each calendar year or portion thereof since January
1985 for which Xxxxxx was employed by InteliData or any of its predecessors or
affiliates (including without limitation WorldCorp, Inc., World Airways, Inc.,
Key Airlines and their respective subsidiaries, predecessors, successors and
affiliates) (the "Retirement Benefit".)
5. Termination of Employment.
(a) Death. Xxxxxx' employment hereunder shall terminate upon his
death, in which event InteliData shall have no further obligation to Xxxxxx or
his estate with respect to compensation, other than the disposition of life
insurance and related benefits, accrued and unpaid base salary, accrued
vacation, earned incentive compensation for periods prior to the date of
termination, and the Retirement Benefit.
(b) By Xxxxxx. Xxxxxx may terminate this agreement upon 90 days
prior written notice to InteliData. In the event Xxxxxx' employment is
terminated pursuant to this section 5 (b), InteliData's only obligation to
Xxxxxx will be the payment of any accrued and unpaid base salary, accrued
vacation, and earned incentive compensation for the period from the date written
notice is given by Xxxxxx, plus 90 days (or such later period if Xxxxxx agrees
to work beyond 90 days), and the Retirement Benefit.
(c) By InteliData for Disability. If Xxxxxx incurs a disability and
such disability continues for a period of twelve (12) consecutive months, then
InteliData may terminate Xxxxxx' employment upon written notice to Xxxxxx, in
which event InteliData shall continue to pay to Xxxxxx his full salary and
benefits with respect to compensation under Section 4 of this Agreement until
Xxxxxx becomes eligible for disability income payments under InteliData's
disability income plan. While receiving disability income payments under such
plan, InteliData shall continue to pay to Xxxxxx the difference between such
disability income payments and his salary under section 4 until the expiration
date of this agreement, including any and all extensions. In addition, Xxxxxx
shall be entitled to continue participation in all benefit plans provided for
under Section 4 for a period of time following such termination equal in length
to the period from January 1985 through the termination date. The term
"disability" means a physical or mental illness that will prevent Xxxxxx from
doing substantial gainful work for at least twelve (12) months. If Xxxxxx
becomes entitled to Social Security benefits payable on account of disability,
he will be conclusively deemed to be disabled for purposes of this Agreement.
(d) By InteliData for Cause. The Board of Directors of InteliData
may terminate this Agreement for Cause. "Cause" shall be defined as: (i) willful
failure to perform at the direction of the resolutions of the Board of Directors
(other than any such failure resulting from Xxxxxx' incapacity due to physical
or mental illness or any such actual or anticipated failure after Xxxxxx gives
notice of termination of employment for Good Reason (as hereinafter defined));
(ii) willful dishonesty in office with the intent to materially defraud in
connection with Xxxxxx' employment hereunder; or (iii) gross negligence in the
performance of the services contemplated by this Agreement. Xxxxxx may only be
terminated for Cause pursuant to a resolution duly adopted by the majority vote
of its entire membership present physically at a meeting of the Board called for
such purpose (provided that a majority of the members approving such resolution
were directors of InteliData elected at its last annual meeting of
stockholders), finding that, in the good faith opinion of the Board, Xxxxxx was
guilty of conduct set forth in clause (i), (ii), or (iii) above, and specifying
the particulars thereof in detail; provided, however, that Xxxxxx may not be
terminated for Cause unless: (1) Xxxxxx receives at least ten (10) business days
prior written notice of InteliData's intention to terminate this Agreement for
Cause and the specific reasons therefor; and (2) Xxxxxx has an opportunity to
meet in person with InteliData's entire Board of Directors and be given, if the
acts are correctable, a reasonable opportunity and reasonable period of time to
correct the act or acts (or non-action) giving rise to such written notice; and
(3) the Board, by resolution duly adopted by the affirmative vote of a majority
of the entire membership of the Board finds that Xxxxxx fails to make such
correction after reasonable opportunity to do so, this Agreement may be
terminated for Cause.
(e) By InteliData for Other Than Cause. The Board of Directors may
terminate this Agreement for reasons other than Cause in accordance with
sub-paragraph (d) above after giving at least 90 days prior written notice of
such termination to Xxxxxx. In addition to all other rights of Xxxxxx hereunder
following such termination:
(i) InteliData will pay to Xxxxxx within ten (10) days of notice
of termination (or, in the case of incentive bonus compensation, within ten (10)
days of determination of amounts payable under the applicable bonus plan
generally) the undiscounted remainder of his base salary then in effect, any
deferred salary and/or bonus compensation payable under this Agreement or
pursuant to any other plan or arrangement of InteliData or any affiliate in
which Xxxxxx is a participant, whether or not then vested or payable and the
Retirement Benefit;
(ii) InteliData shall pay to Xxxxxx an amount equal to the
highest incentive bonus paid to Xxxxxx for any of the three calendar years
immediately preceding the date of termination, prorated through his month of
departure; and
(iii) Xxxxxx shall be entitled to retain at his election the
prepaid mileage balance in his United Airlines Passplus Account, provided that
to the extent such balance at the date of termination exceeds $25,000, Xxxxxx
shall pay to InteliData an amount equal to such balance in excess of $25,000.
In addition, all granted but unexercisable stock options under all of
Xxxxxx' Option Agreements (and any additional options granted upon extension of
the term hereof, if applicable) shall become immediately exercisable and remain
exercisable for the remaining term of such options.
(f) By Xxxxxx for Good Reason. Xxxxxx may terminate his employment
hereunder (for purposes of this Agreement "Good Reason") after giving at least
30 days notice in the event that: (i) InteliData relocates its general and
administrative offices or Xxxxxx' place of employment to an area other than the
Washington, D.C. Standard Metropolitan Statistical Area (the "Washington SMSA"),
(ii) he is assigned any duties substantially inconsistent with his
responsibilities as described by Section 3 hereof or a substantial adverse
alteration is made to the nature or status of such responsibilities (which for
purposes of this Agreement shall be deemed to include the removal or
non-reelection of Xxxxxx to InteliData's Board of Directors unless consented to
in writing by Xxxxxx), (iii) InteliData reduces his annual base salary as in
effect on the date hereof or as the same may be increased from time to time;
(iv) InteliData fails, without Xxxxxx' consent, to pay Xxxxxx any portion of his
current compensation, or to pay him any portion of an installment of deferred
compensation under any deferred compensation program of InteliData, within seven
(7) days of the date such compensation is due; (v) InteliData fails to continue
in effect any compensation plan in which Xxxxxx participates which is material
to Xxxxxx' total compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan,
or the failure by InteliData to continue Xxxxxx' participation therein (or in
such substitute or alternative Plan) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the level of Xxxxxx'
participation relative to other participants; (vi) InteliData fails to continue
to provide Xxxxxx with benefits substantially similar to those enjoyed by Xxxxxx
under any of InteliData's pension, life insurance, medical, health and accident,
or disability plans in which Xxxxxx was participating; (vii) InteliData takes
any action which would directly or indirectly materially reduce any of such
benefits or deprive Xxxxxx of any material fringe benefit enjoyed by Xxxxxx, or
InteliData fails to provide Xxxxxx with the number of paid vacation days to
which Xxxxxx is entitled hereunder; (viii) InteliData terminates, or proposes to
terminate Xxxxxx' employment hereunder contrary to the requirements of Section
5(e) hereof (for purposes of this Agreement, no such termination or purported
termination shall be effective); (ix) a Change in Control (as defined below)
occurs; or (x) the Board determines that InteliData should be sold, liquidated
or dissolved or a majority of assets sold prior to the end of this Agreement; or
(xi) InteliData, or a majority of InteliData's assets, are sold, acquired,
merged, dissolved, consolidated, liquidated, spun off, split off, reorganized or
otherwise restructured. In the event that Xxxxxx elects to terminate this
Agreement and his employment with InteliData or any successor in interest in
accordance with the provisions of this section, in addition to all other rights
of Xxxxxx hereunder following such termination;
(i) InteliData will pay to Xxxxxx within ten (10) days of notice
of termination (or, in the case of incentive bonus compensation, within ten (10)
days of determination of amounts payable under the applicable bonus plan
generally) the undiscounted remainder of his base salary then in effect, any
deferred salary and/or bonus compensation payable under this Agreement or
pursuant to any other plan or arrangement of InteliData or any affiliate in
which Xxxxxx is a participant, whether or not then vested or payable and the
Retirement Benefit;
(ii) InteliData shall pay to Xxxxxx an amount equal to the
highest incentive bonus paid to Xxxxxx for any of the three calendar years
immediately preceding the date of termination prorated through his month of
departure; and
(iii) Xxxxxx shall be entitled to retain at his election the
prepaid mileage balance in his United Airlines Passplus Account, provided that
to the extent such balance at the date of termination exceeds $25,000, Xxxxxx
shall pay to InteliData an amount equal to such balance in excess of $25,000.
In addition all granted but unvested stock options under all of Xxxxxx'
Option Agreements (including any additional options granted upon extension of
the term hereof) shall become immediately exercisable and remain exercisable for
the remaining term of such option. Any other payments due or actions required
under this paragraph shall be made within 10 days of termination of the
Agreement (or, in the case of incentive bonus compensation, within ten (10) days
of determination of amounts payable under the applicable bonus plan generally).
(g) Termination Following a Change in Control. In the event of
termination of Xxxxxx' employment hereunder within two years prior to or
following a Change in Control, for any reason (including by Xxxxxx for Good
Reason but excluding any termination by InteliData for Cause) in addition to the
rights provided in the Option Agreement and all other rights provided hereunder:
(i) InteliData will pay to Xxxxxx within ten (10) days of notice
of termination (or, in the case of incentive bonus compensation, within ten (10)
days of determination of amounts payable under the applicable bonus plan
generally) the undiscounted remainder of his base salary then in effect, any
deferred salary and/or bonus compensation payable under this Agreement or
pursuant to any other plan or arrangement of InteliData or any affiliate in
which Xxxxxx is a participant, whether or not then vested or payable and the
Retirement Benefit;
(ii) InteliData shall pay to Xxxxxx an amount equal to the
highest incentive bonus paid to Xxxxxx for any of the three calendar years
immediately preceding the Change in Control, prorated through his month of
departure; and
(iii) Xxxxxx shall be entitled to retain at his election the
prepaid mileage balance in his United Airlines Passplus Account, provided that
to the extent such balance at the date of termination exceeds $25,000, Xxxxxx
shall pay to InteliData an amount equal to such balance in excess of $25,000.
For purposes of this Section 5, a "Change in Control" shall be deemed to
have occurred if the conditions set forth in any one of the following paragraphs
shall have been satisfied:
(i) Any person, or any persons acting together which would
constitute a "group" for purposes of section 13(d) of the Securities Exchange
Act of 1934, together with any affiliate thereof shall beneficially own (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) at
least 50% of the total voting power of all classes of capital stock of the
Company entitled to vote generally in the election of directors of the Company;
or
(ii) Any event or series of events that results in the Directors
on the Board of Directors, who were Directors prior to the event or series of
events, to cease to constitute a majority of the Board of Directors of any
parent of or successor to the Company; or
(iii) The merger, consolidation or reorganization (a) in which
the Company is the continuing or surviving corporation, (b) in which the Company
is not the continuing or surviving corporation, or ( c) pursuant to which the
Company's common stock would be converted into cash, securities or other
property, except in the case of either (a), (b), or ( c), a consolidation or
merger of the company in which the holders of the Common Stock immediately prior
to the consolidation or merger have, directly or indirectly, at least a majority
of the total voting power of all classes of capital stock entitled to vote
generally in the election of directors of the continuing or surviving
corporation immediately after such consolidation or merger in substantially the
same proportion as their ownership of Common Stock immediately before such
transaction ; or
(iv) The consummation of a tender or exchange offer for shares of
the Company's Common Stock (other than tender or exchange offers made by the
Company or Company-sponsored employee benefit plans); or
(v) The sale or transfer of a majority of the assets of the
Company to another corporation or to any person or entity; or
(vi) The Board of Directors of InteliData approves a plan of
complete or partial liquidation of InteliData or an agreement for the sale or
disposition by InteliData of a majority of its assets.
For purposes of this Section, "Person" shall have the meaning given in
Section (3)(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof; however, a Person shall not include (i) the Company or any of
its subsidiaries or affiliates, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its
subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(h) Notice of Termination. Termination of this Agreement by
InteliData or termination of this Agreement by Xxxxxx shall be communicated by
written notice to the other party hereto, specifically indicating the
termination provision relied upon.
(i) In the event that Xxxxxx becomes entitled to the payments and
benefits described in this Section 5 (together with any other benefits to which
Xxxxxx is entitled hereunder following a termination entitling Xxxxxx to the
payments and benefits of this Section 5, the "Severance Benefits"), if any of
the Severance Benefits will be subject to any excise tax (the "Excise Tax")
imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), InteliData shall pay to Xxxxxx an additional amount (the "Gross-Up
Payment") such that the net amount retained by Xxxxxx, after deduction of any
Excise Tax on the Severance Benefits and any federal, state and local income and
employment tax and Excise Tax upon the payment provided for by this Section 5,
shall be equal to the Severance Benefits. For purposes of determining whether
any of the Severance Benefits will be subject to the Excise Tax and the amount
of such Excise Tax, (i) any other payments or benefits received or to be
received by Xxxxxx in connection with a Change in Control or Xxxxxx' termination
of employment (whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with InteliData, any person whose actions result
in a change in control or any person affiliated with InteliData or such person)
shall be treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute payments" within the meaning
of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax,
unless in the opinion of tax counsel selected by InteliData's independent
auditors and reasonably acceptable to Xxxxxx such other payments or benefits (in
whole or in part) do not constitute parachute payments, including by reason of
Section 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole
or in part) represent reasonable compensation for services actually rendered,
within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base
Amount as defined in Section 280G(b)(3) of the Code allocable to such reasonable
compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of
the Severance Benefits that shall be treated as subject to the Excise Tax shall
be equal to the lesser of (a) the total amount of the Severance Benefits or (b)
the amount of excess parachute payments within the meaning of Section 280G(b)(1)
of the Code (after applying clause (i) above), and (iii) the value of all
non-cash benefits or any deferred payment or benefit shall be determined by
InteliData's independent auditors in accordance with the principles of Section
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, Xxxxxx shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of InteliData's
residence on the date of termination, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes. In the event that the Excise Tax is subsequently determined to be less
than the amount taken into account hereunder at the time of termination of
Xxxxxx' employment, Xxxxxx shall repay to InteliData (without interest), at the
time that the amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction (plus that
portion of the Gross-Up Payment attributable to the Excise tax and federal,
state and local income and employment tax imposed on the Gross-Up Payment being
repaid by Xxxxxx to the extent that such repayment results in a reduction in
Excise Tax and/or federal, state or local income or employment tax deduction).
In the event that the Excise Tax is determined to exceed the amount taken into
account hereunder at the time of the termination of Xxxxxx' employment
(including by reason of any payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), InteliData shall make an
additional Gross-Up Payment in respect of such excess (plus any interest,
penalties or additions payable by Xxxxxx with respect to such excess) at the
time that the amount of such excess is finally determined. Xxxxxx and InteliData
shall each reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Severance Benefits.
(j) InteliData also shall pay to Xxxxxx all legal and accounting fees
and expenses incurred by Xxxxxx as a result of a termination which entitles him
to the Severance Benefits (including all such fees and expenses, if any,
incurred in disputing any such termination, in seeking in good faith to obtain
or enforce any benefit or right provided by this Agreement or in any dispute
with any taxing authority with respect to any Excise Tax). Such payments shall
be made within five (5) business days after delivery of Xxxxxx' written requests
for payment accompanied with evidence of such fees and expenses incurred as
InteliData may reasonably require.
(k) Company Property. Upon the termination of Xxxxxx' employment
under this agreement, for any reason, Xxxxxx shall be entitled to retain, as his
own property, mobile telephones, notebook and other computers and their related
peripherals, other electronic equipment, furnishings, all equipment manufactured
by InteliData and used by Xxxxxx, and other property issued to Xxxxxx in the
course of his employment.
6. Beneficiary. The Beneficiary of any payment to be made in the event
of Xxxxxx' death shall be his wife, or such other person or persons as Xxxxxx
shall designate in writing to InteliData. If no beneficiary shall survive
Xxxxxx, any such payments shall be made to his estate.
7. No Waiver. The failure of either party at any time to enforce any
provisions of this Agreement or to exercise any remedy, option, right, power or
privilege provided for herein, or to require the performance by the other party
of any of the provisions hereof, shall in no way be deemed a waiver of such
provision at the same or at any prior or subsequent time.
8. Governing Law. This Agreement is governed by and shall be construed
in accordance with the laws of the Commonwealth of Virginia. Xxxxxx agrees to
submit to personal jurisdiction in the Commonwealth of Virginia.
9. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not be deemed to affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
10. Successors. This Agreement shall be binding upon InteliData, its
successors and assigns, including any corporation or other business entity which
may acquire all or substantially all of InteliData's assets or business, or
within which InteliData may be consolidated or merged, or any surviving
corporation in a merger involving InteliData.
11. Waiver or Modification of Agreement. No waiver or modification of
this Agreement shall be valid unless in writing and duly executed by both
parties.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which together will constitute one and the same
instrument.
13. Controlling Agreement. In the event of any inconsistency or conflict
between the provisions of this Agreement and any term or provision of the Option
Agreement or Plan, the provisions of this Agreement shall govern and supersede
such conflicting or inconsistent provision. InteliData agrees to cause the Plan
to be amended as may be required to eliminate any such conflict or
inconsistency.
14. Noncompetition Covenants. Xxxxxx agrees that during the term of this
Agreement, and thereafter for a period of two years following termination of his
employment hereunder (other than in the event of any termination by InteliData
other than for Cause or by Xxxxxx for Good Reason, or termination for any reason
within two years prior to or following a Change in Control, in which events the
restrictions of this Section 14 shall not apply), he will not, without the prior
written consent of the Board of Directors as evidenced by a resolution adopted
by the Board, directly or indirectly, whether as employee, partner, owner,
agent, director, officer, consultant or equity holder (except as the holder of
not more than 5% of the outstanding equity interests at the time of acquisition
of a publicly traded entity, or any successor thereto), engage in any business
competitive with any business in which InteliData or any of its affiliates were
engaged on the date of termination (a "Competitive Business"). The foregoing
shall not prohibit Xxxxxx from becoming affiliated with any person engaged in a
Competitive Business provided that Xxxxxx' affiliation does not include any
involvement in any capacity with such Competitive Business.
Xxxxxx acknowledges that his violation of this Section 14 would cause
InteliData and its affiliates to suffer irreparable damage, and that the
character, period and scope of the restrictions set forth herein are reasonably
required for the protection of InteliData. Therefore, in addition to any other
remedies available to InteliData under this Agreement or otherwise, InteliData
shall be entitled to seek injunctive relief with respect to any violation of
this Section 14 in any court of competent jurisdiction.
15. Nondisparagement. Each party hereto agrees that during the
effectiveness of and following termination of this Agreement for any reason, it
will not make any disparaging statements, remarks or comments with respect to
the remaining party, whether written or oral.
IN WITNESS WHEREOF, parties have executed this Agreement as of the date and
year first above written.
InteliData Technologies Corporation
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board
/s/ Xxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxx X. Xxxxxx, Xx.
President and
Chief Executive Officer
Address: 0000 Xxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
