EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of April 3, 2002 by
and between Corillian Corporation, an Oregon corporation, and its affiliates,
divisions and subsidiaries (collectively, "EMPLOYER"), and Xxxxxx Xxxxx
("EXECUTIVE").
WITNESSETH:
WHEREAS, Employer desires to obtain the benefit of service by
Executive through August 24, 2002, and Executive desires to render services to
Employer through such date;
WHEREAS, the Board of Directors of Employer (the "BOARD") has
determined that because of Executive's substantial experience and business
relationships in connection with the business of Employer, it is in the
Employer's best interest and that of its shareholders to secure the services of
Executive through August 24, 2002; and
WHEREAS, Employer and Executive desire to set forth in this
Agreement the terms and conditions of Executive's employment with Employer and
termination of employment with Employer.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties agree as follows:
1. EXECUTIVE REPRESENTATION. Executive represents and warrants that he
has the capacity to enter into this Agreement and that this Agreement will not
conflict with or result in a default under any other agreement binding on
Executive.
2. TITLE; DUTIES AND RESPONSIBILITIES. Employer and Executive agree
that, subject to the provisions of this Agreement, Employer will employ
Executive and Executive will serve Employer as Chief Operating Officer for the
duration of this Agreement, except that if Employer delivers a Commission
Termination Notice (as defined below), Executive's title will change to
Executive Vice President of Global Sales, effective June 1, 2002. Executive will
report to Employer's Chief Executive Officer. Only sales personnel will report
to Executive, and if Employer delivers a Commission Termination Notice, all such
personnel will cease reporting to Executive, effective June 1, 2002. Executive
agrees to observe and comply with the rules and regulations of Employer
respecting the performance of Executive's duties and agrees to carry out and
perform orders, directions and policies of Employer, its Chief Executive Officer
and its Board as they may be, from time to time, stated either orally or in
writing. Except as specifically provided otherwise in this Agreement, Executive
shall comply with all of the policies and procedures adopted by Employer (as the
same may be amended from time to time by Employer). Executive will resign from
the Board immediately following execution of this Agreement.
B-1
3. TERM. Employer agrees to employ Executive and Executive agrees to
serve Employer, in accordance with the terms of this Agreement, commencing on
the date hereof and continuing until August 24, 2002 (the "TERM"), unless this
Agreement is earlier terminated in accordance with the provisions of this
Agreement. Executive's employment with Employer will terminate upon the
expiration of the Term without any action by either party.
4. SERVICES AND EXCLUSIVITY OF SERVICES. During the Term, Executive
shall (i) devote his full business time, energy and ability exclusively to the
business, affairs and interests of Employer, and matters related thereto, (ii)
use Executive's best efforts and abilities to promote Employer's interests, and
(iii) perform the services contemplated by this Agreement in accordance with
policies established by Employer and under the direction of Employer's Chief
Executive Officer and the Board, except that if Employer delivers a Commission
Termination Notice, Executive will be permitted to work from his residence,
effective June 1, 2002, and provide limited services to transition his workload
to another employee of Employer.
Without the prior express written authorization of the Board,
Executive shall not, directly or indirectly, during the Term or until June 1,
2002 if a Commission Termination Notice has been delivered: (a) render services
to any other person or firm for compensation or (b) engage in any activity
competitive with or adverse to Employer's Business (as defined below), whether
alone, as a partner, or as an officer, director, employee or significant
investor of or in any other entity. (An investment of greater than 5% of the
outstanding capital or equity securities of an entity shall be deemed
significant for these purposes.) "BUSINESS" shall mean the development,
marketing and sale of solutions to enable companies to offer electronic
financial services (including, without limitation, through the Internet, mobile
phones, PDA's or interactive television) and the provision of professional
services to implement, install and customize such solutions.
Executive may serve as a director or in any other capacity of any
business enterprise or any nonprofit or governmental entity or trade
association, whose activities involve or relate to the Business, provided in
each case that such service is expressly approved by the Board and does not
interfere with Executive's duties hereunder.
Executive may make and manage personal business investments of
his choice and serve in any capacity with any civic, educational or charitable
organization without seeking or obtaining approval by the Board, provided that
such activities and services do not substantially interfere or conflict with the
performance of duties hereunder or create any conflict of interest with such
duties. An investment that exceeds 5% of the equity securities or capitalization
of a competitor, supplier or customer of Employer shall be deemed to constitute
such a conflict. Executive shall not serve in any of such capacities for any
business enterprise unless such service is expressly authorized by the Board in
advance.
5. COMPENSATION.
5.1 BASE COMPENSATION. During the Term, Employer agrees to pay
Executive, in accordance with Employer's applicable payroll policies in effect
from time to time during the Term, a base salary at the rate of $220,000 per
year (the "BASE SALARY").
B-2
5.2 ADDITIONAL BENEFITS. Executive shall also be entitled to all
rights and benefits for which Executive is otherwise eligible under pension
plan, life, medical, dental, disability, or insurance plan or policy, as from
time to time in effect, during the term of this Agreement that Employer may
provide for Executive or (provided Executive is eligible to participate therein)
for other employees of Employer with comparable positions and responsibilities
generally (collectively, the "ADDITIONAL BENEFITS"). Additional Benefits will
include, without limitation, the following:
(A) Corillian will compensate Executive for directing the
successful selling efforts with Washington Mutual, Amsouth and M&T (the
"Prospects") and certain other customers. Executive will discuss in good
faith the general terms of any negotiation in these deals with
Employer's Chief Executive Officer before discussion and final
negotiation with the Prospects. For Executive's efforts Employer will
pay Executive 1% of all Commissionable Components (as defined in the
2002 Corillian Commission Plan, which is attached to this Agreement and
incorporated herein by this reference) from signed contracts with the
Prospects before August 24, 2002. In addition, Employer will pay
Executive 1% of all Commissionable Components from binding agreements to
purchase products or services ("Contracts") signed between January 1,
2002 and August 24, 2002 other than Voyager SE Contracts and .5% of all
Commissionable Components from Voyager SE Contracts signed between
January 1, 2002 and August 24, 2002. Notwithstanding the foregoing,
Employer may, in its sole discretion, deliver notice at any time on or
before May 1, 2002 that Employee is no longer entitled to commissions (a
"Commission Termination Notice"), and in such event, Executive will only
be entitled to receive payment for Commissionable Components for
Contracts signed before June 1, 2002 and will not be entitled to receive
payment for any Contracts signed after June 1, 2002. The net proceeds
from all payments to Executive under this Section 5.2(A) may be withheld
by Employer and applied to the outstanding balance of the note executed
by Executive in favor of Employer on August 7, 2001 (the "Note") until
all amounts outstanding under the Note are paid in full.
(B) Corillian will serve as a positive reference for Executive in
seeking alternative employment.
5.3 PERQUISITES. Executive shall be entitled to up to 240 hours
of Paid Time Off ("PTO") per annum, which shall accrue on a daily basis from the
date of this Agreement, except that Executive will be given credit for any time
employed by Employer before the date of this Agreement. PTO includes vacation,
sick leave, and personal leave. Holidays have been excluded from the PTO. PTO
may be taken at such time during each year as may be mutually agreed upon by
Executive and Employer. At no time may Executive accrue more than 240 hours of
PTO.
5.4 OVERALL QUALIFICATION. Subject to the terms of any written
benefit plans, Employer reserves the right to modify, suspend or discontinue any
and all of the above referenced benefit plans, practices, policies and programs
at any time (whether before or after termination of employment) without notice
to or recourse by Executive so long as such action is taken generally with
respect to other similarly situated persons and does not single out Executive.
B-3
6. TERMINATION. The Base Salary and Additional Benefits provided to
Executive pursuant to this Agreement, and the employment of Executive by
Employer, shall be terminated prior to expiration of the Term only as provided
in this Section 6.
6.1 DISABILITY. If a physical or mental illness renders Executive
unable to perform his normal duties in connection with Employer for a period of
180 days (whether or not consecutive) out of any consecutive 365 days and that
the Board reasonably determines is reasonably expected to continue to render
Executive unable to perform such duties (a "DISABILITY"), Executive's employment
hereunder may be terminated by written notice of termination from Employer to
Executive. Executive agrees to submit to examinations from time to time by a
duly licensed physician, who shall be selected by Employer's Chief Executive
Officer, in connection with any actual or alleged Disability; provided, that
such physician shall be independent as to Employer and its affiliates (other
than Executive) and shall be a specialist in the area of Executive's alleged
Disability. If Executive's employment is terminated by Employer because of a
Disability, this Agreement will terminate in all respects, provided that
Employer shall pay to Executive or the personal representative of Executive (the
"BENEFICIARY"), as applicable, any Base Salary through the date of termination
and any accrued Additional Benefits that do not by their terms end at the
Disability of Executive.
6.2 DEATH. If Executive dies during the Term, this Agreement will
terminate in all respects, provided that Employer shall pay to the Beneficiary
any Base Salary through the date of death and any accrued Additional Benefits
that do not by their terms end at the death of Executive.
6.3 FOR CAUSE. Executive's employment hereunder shall be
terminated and all of his rights to receive Base Salary and (subject to the
terms of any plans relating thereto) Additional Benefits hereunder in respect of
any period after such termination, shall terminate upon a determination by the
Board, acting in good faith based upon actual knowledge at such time, that
Executive (i) is or has been grossly negligent, (ii) is engaging or has engaged
in willful or grossly negligent misconduct or a breach of fiduciary duty
involving personal profit, (iii) has failed to perform material duties, (iv) has
been convicted of any felony, or (v) has intentionally or materially breached
any of the provisions of this Agreement or any other agreement with Employer
(each of the above being a termination for "CAUSE").
(A) Employer shall effect a termination for Cause by written
notice to Executive specifying in reasonable detail the circumstances
alleged by Employer that constitute a basis for termination for Cause
and the specific provisions of Section 6.3 relied upon in effecting such
termination. The date of such termination shall be the date ten (10)
days after Employer gives such notice of termination to Executive. If
the grounds for such termination are solely the grounds set forth in
Section 6.3 (excluding, for this purpose, conviction of a felony as set
forth above), then during such ten (10) day period, Executive shall be
afforded an opportunity to discuss the basis for such termination with
the Board, and Executive shall, at his election exercised in writing
prior to the expiration of such ten (10) day period, be entitled to a
period of not less than thirty (30) days after the date of such
discussion to attempt to remedy or cure the conduct alleged to
constitute such grounds and the harm caused thereby if in the good faith
and reasonable judgment of the Board, such conduct and harm is capable
of being remedied
B-4
or cured within said thirty (30) day period. If, after the expiration of
such cure period, the Executive has not in the good faith and reasonable
judgment of the Board, remedied or cured the conduct alleged to
constitute such grounds and the harm caused thereby, the termination for
Cause shall be effective upon notice to Executive of such adverse Board
judgment.
(B) Upon termination of Executive's employment for Cause, the
obligations of Executive and Employer under this Agreement shall
immediately cease. Such termination shall be without prejudice to any
other remedy to which Employer may be entitled either at law, in equity,
or under this Agreement.
6.4 WITHOUT CAUSE. Employer may terminate Executive's employment
hereunder at any time upon 15 days prior written notice without cause, which
termination shall take effect upon August 24, 2002. If Employer exercises its
right to terminate Employee without cause, during the period before August 24,
2002 (i) Executive will work from his residence and only provide limited
services to transition his workload to another employee of Employer and (ii)
Executive will cease being chief operating officer and have no authority to bind
the company in any transactions or Contracts. Upon a termination of Executive's
employment by Employer without cause hereunder, Employer shall only be obligated
under this Agreement and its policies to pay to Executive (a) any Additional
Benefits (other than Additional Benefits under Section 5.2(A)) accrued through
the date of termination, (b) any Additional Benefits under Section 5.2(A)
through the date 15 days after the date of notice of termination, and (c)
Executive's Base Salary through August 24, 2002, and Employer will release
Executive from his outstanding indebtedness under the Note.
6.5 NO LIMITATION. Employer's exercise of its right to terminate
shall be without prejudice to any other right or remedy to which it or any of
its affiliates may be entitled at law, in equity or under this Agreement.
6.6 EXCLUSIVE REMEDY; RELEASE. Executive agrees that the payments
expressly provided and contemplated by this Agreement shall constitute the sole
and exclusive obligation of Employer in respect of Executive's employment with
and relationship to Employer and that the payment thereof shall be the sole and
exclusive remedy for any termination of Executive's employment. Executive
covenants not to assert or pursue any other remedies, at law or in equity, with
respect to any termination of employment. In connection with this Agreement and
in consideration hereof, Executive has executed the Release Agreement attached
hereto as Exhibit A (the "Release"). If Executive revokes the Release in
accordance with the terms thereof, this Agreement will automatically terminate
and be of no force or effect.
6.7 MITIGATION. Executive shall not be required to mitigate or
attempt to mitigate damages under this Agreement.
7. BUSINESS EXPENSES. During the Term, Employer shall, in accordance
with Employer's policy in effect from time to time, reimburse Executive promptly
for all reasonable and adequately documented business expenses which Executive
incurs in his reasonable judgment in connection with the services to be rendered
to Employer hereunder, including
B-5
entertainment, travel, and transportation expenses incurred in pursuit and
furtherance of Employer's business and goodwill.
8. NO SOLICITATION OF EMPLOYEES OR CLIENTS; LIMITATION ON NON-COMPETE.
Executive agrees that he will not, directly or indirectly, for a period of 2
years from the termination of this Agreement, solicit, entice, persuade, or
induce any employee of Employer or any client under contract with Employer to
terminate his or her employment by, or contract with, Employer or its
subsidiaries, if any, or to refrain from extending or renewing the same (upon
the same or new terms) or to become employed by or to enter into any agency
contract with a person or business other than Employer. The Noncompete,
Nondisclosure, Conflict of Interest and Assignment of Improvements, Inventions
and Discoveries Agreement (the "Noncompete Agreement"), dated as of November 3,
1999, between Employer and Executive is hereby amended to only apply to
Employer's business as conducted prior to termination of Employee's employment
and only apply to the following named competitors and their affiliates:
FinancialFusion, Digital Insight, Metavante, S1, Yodlee, CheckFree, EEI,
Tecknowledge, Fiserv, Brokat, IBM, OSI, OFS, Alltel, Bisys, CashEdge, Umonitor,
Eontech and Microsoft.
9. DISPUTE RESOLUTION.
9.1 GOVERNING LAW. This Agreement is to be interpreted in
accordance with the laws of the State of Oregon. Executive and Employer hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in Oregon for any action or proceeding arising from or relating to this
Agreement.
9.2 ATTORNEYS' FEES AND COURT COSTS. If any suit or action
arising out of or related to this Agreement is brought by any party, the
prevailing party shall be entitled to recover the costs and fees (including
without limitation reasonable attorney fees, the fees and costs of experts and
consultants, copying, courier and telecommunication costs, and deposition costs
and all other costs of discovery) incurred by such party in such suit or action,
including without limitation any post-trial or appellate proceeding.
9.3 EQUITABLE RELIEF. Executive acknowledges that Employer may
not have an adequate remedy at law in the event of any breach or threatened
breach by Executive of this Agreement pertaining to confidentiality or
intellectual property, and that Employer or its customers or suppliers may
suffer irreparable injury as a result. In the event of any such breach or
threatened breach, Executive hereby consents to the granting of injunctive
relief without the posting by Employer of any bond or other security.
10. MISCELLANEOUS.
10.1 SUCCESSION; SURVIVAL. This Agreement shall inure to the
benefit of and shall be binding upon Employer, its successors and assigns. The
obligations and duties of Executive hereunder are personal and otherwise not
assignable. Executive's obligations and representations under this Agreement
will survive the termination of Executive's employment, regardless of the manner
of such termination.
10.2 NOTICES. Any notice or other communication provided for in
this Agreement shall be in writing and sent if to Employer to its principal
office at:
B-6
Corillian Corporation
0000 XX Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
or at such other address as Employer may from time to time in writing designate,
and if to Executive at such address as Executive may from time to time in
writing designate (or Executive's business address of record in the absence of
such designation). Each such notice or other communication shall be effective
(i) if given by telecommunication, when transmitted to the applicable number so
specified in (or pursuant to) this Section 10.2 and an appropriate answerback is
received, (ii) if given by mail, three days after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid
or (iii) if given by any other means, when actually delivered at such address.
10.3 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Release
and the Noncompete Agreement (as expressly modified herein) contain the entire
agreement of the parties relating to the subject matter hereof and thereof and
supersede any prior agreements, undertakings, commitments and practices relating
to Executive's employment by Employer and termination of employment by Employer.
No amendment or modification of the terms of this Agreement or such other
documents shall be valid unless made in writing and signed by Executive and, on
behalf of Employer, by an officer expressly so authorized by the Board.
10.4 WAIVER. No failure on the part of any party to exercise or
delay in exercising any right hereunder shall be deemed a waiver thereof or of
any other right, nor shall any single or partial exercise preclude any further
or other exercise of such right or any other right.
10.5 EMPLOYER INFORMATION. Executive agrees that he will not,
during his employment with Employer, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that he will not bring onto the premises of Employer or its
affiliates any unpublished document or proprietary information belonging to any
such employer, person or entity, unless consented to in writing by such
employer, person or entity.
10.6 PLACE OF EMPLOYMENT. Until (i) the end of the Term, (ii)
June 1, 2002 if a Commission Termination Notice is delivered, or (iii) Executive
receives notice of a termination without cause, Executive's residence and
principal place for performing his obligations hereunder shall be Portland,
Oregon and vicinity (including Beaverton and Hillsboro); provided, however, that
Executive will be expected to engage in travel throughout the United States and
the world as Employer may reasonably request or as may be required for the
proper performance of services hereunder.
10.7 SEVERABILITY. If this Agreement shall for any reason be or
become unenforceable in any material respect by any party, this Agreement shall
thereupon terminate and become unenforceable by the other party as well. In all
other respects, if any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain in full
force and effect. If any provision is held invalid or unenforceable with respect
to
B-7
particular circumstances, it shall nevertheless remain in full force and effect
in all other circumstances to the fullest extent permitted by law and may be
modified by a court to make the provision consistent with applicable laws.
10.8 SECTION HEADINGS. Section and other headings contained in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
10.9 COUNTERPARTS. This Agreement and any amendment hereto may be
executed in one or more counterparts. All of such counterparts shall constitute
one and the same agreement and shall become effective when a copy signed by each
party has been delivered to the other party.
10.10 CONSTRUCTION. The parties hereto acknowledge that each
party to this Agreement is sophisticated and has been represented by counsel in
connection with this Agreement and the transactions contemplated by this
Agreement. Accordingly, no provision of this Agreement shall be construed
against any party on the ground that such party or its counsel drafted the
provision, and the parties hereby waive any statute or rule to the contrary.
B-8
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
"EMPLOYER"
CORILLIAN CORPORATION
BY:
--------------------------------
ITS:
-------------------------------
"EXECUTIVE"
XXXXXX XXXXX
-----------------------------------
Address:
-----------------------------------
-----------------------------------
-----------------------------------
B-9
EXHIBIT A
RELEASE AGREEMENT
This Release Agreement (this "Agreement") is entered into this
3rd day of April, 2002, by and between Corillian Corporation, an Oregon
corporation (the "Company"), and Xxxxxx Xxxxx ("Employee").
RECITALS
A. The Company and the Employee have agreed to terminate their
employment relationship on August 24, 2002 and as a condition to the Company's
entering into an employment agreement with Employee (the "Employment Agreement")
on the date hereof, Employee agreed to execute this Agreement.
NOW, THEREFORE, for in consideration of the mutual promises contained
herein and the Employment Agreement, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
AGREEMENT
1. RELEASE. In consideration of payments to be made to Employee
under the Employment Agreement, Employee, on Employee's own behalf and on behalf
of Employee's descendants, dependents, heirs, executors, successors, assigns and
administrators hereby (1) covenants not to xxx, (2) fully releases and
discharges, and (3) agrees to hold harmless the Company and each of its related
companies or entities, and each of its and their executors, administrators,
partners, predecessors, successors, assigns, officers, directors, shareholders,
representatives, attorneys, employees and agents, past and present, with respect
to and from and against any and all claims, demands, obligations, causes of
action, debts, expenses, damages, judgments, orders and liabilities of whatever
kind or nature, in law, equity or otherwise, whether now known or unknown,
suspected or unsuspected, matured or unmatured, and whether or not concealed or
hidden (collectively, the "Claims"), which Employee now owns or holds or has at
any time heretofore owned or held or had, or may at any time own or hold or
have, against the Company, including without limiting the generality of the
foregoing, any Claims arising out of or in any way connected with any
transactions, occurrences, acts or omissions regarding or relating to Employee's
employment with the Company or any of its affiliates, or the termination of
Employee's employment, including without limitation any claims arising from any
alleged violation by the Company of any federal, state or local statutes,
ordinances or common laws, including, but not limited to, the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964 and/or the Civil
Rights Act of 1991, the Americans with Disabilities Act, and the Family and
Medical Leave Act of 1993, or any claim for severance pay, bonus, sick leave,
holiday pay, vacation pay, life insurance, health or medical insurance or any
other fringe benefit, workers' compensation or disability. The foregoing release
of Claims does not apply to any Claims based on a breach of the Company's
contractual obligations under the Employment Agreement. Employee further agrees
to indemnify and hold the Company and each of its related companies or entities,
and each of its predecessors, successors, assigns, officers,
B-10
directors, shareholders, representatives, attorneys, employees and agents, past
and present, harmless from any claims, demands, deficiencies, levies,
assessments, executions, judgments or recoveries by any governmental entity
against the Company, or any of the foregoing persons or entities, pursuant to
claims made under any federal or state tax laws, and any costs, expenses or
damages sustained by them by reason of any such claims, including any amounts
paid by the Company, its predecessors, officers, directors, employees,
attorneys, representatives, successors and assigns as taxes, attorneys' fees,
deficiencies, levies, assessments, fines, penalties, interest or otherwise. The
foregoing does not preclude Employee from seeking indemnification from the
Company or its insurers (including without limitation insurers for Directors and
Officers Liability Insurance) if a claim is brought against Employee by any
third party based on actions of Employee within the course and scope of his
employment or position as an officer or Board of Directors member.
2. ADEA WAIVER. Employee expressly acknowledges and agrees that,
by entering into this Agreement, Employee is waiving any and all rights or
claims that Employee may have arising under the Age Discrimination in Employment
Act of 1967, as amended, which have arisen on or before the date of execution of
this Agreement. Employee further expressly acknowledges and agrees to the
following:
2.1. CONSIDERATION. In return for this Agreement, Employee will
receive consideration beyond that which Employee was already
entitled to receive before entering into this Agreement.
2.2. COUNSEL. Employee was orally advised by Company and was
advised in writing to consult with an attorney before signing
this Agreement.
2.3. PERIOD TO CONSIDER AND REVOCATION. Employee has the right to
take up to 21 days to consider and accept the terms of this
Release. Employee may accept in less time by signing and
delivering the Agreement to Employer. Employee has the right to
revoke this Agreement within seven (7) days of the date of
execution of the Release. To be effective, Employee must deliver
a timely and written revocation notice to Employer.
3. WAIVER OF KNOWN AND UNKNOWN CLAIMS. In executing this
Agreement, Employee intends to bar each and every claim, demand and cause of
action specified above; in furtherance of this intention Employee hereby
expressly waives any and all rights and benefits conferred upon Employee by any
statutory provision and expressly agrees that this Agreement will be given full
force and effect according to each and all of its express terms and provisions.
This Agreement extends to unknown and unsuspected claims, demands and causes of
action, if any, as well as to those relating to any other claims, demands and
causes of action hereinabove specified. Employee makes this waiver with full
knowledge of Employee's rights, after adequate opportunity to consult with legal
counsel.
Employee acknowledges that Employee may hereafter discover claims or facts in
addition to or different from those which Employee now knows or believes to
exist with respect to the subject matter of this Agreement, and which, if known
or suspected at the time of executing this Agreement may have materially
affected this settlement. Nevertheless, Employee hereby waives
B-11
any right, claim or cause of action that might arise as a result of such
different or additional claims or facts. Employee hereby understands and
acknowledges the significance and consequence of such release and waiver.
Notwithstanding such provision, this Agreement constitutes a full release in
accordance with its terms. Employee knowingly and voluntarily waives the
provisions of any statute, law, or rule that would operate to limit the waiver
and release provided for by this Agreement, and acknowledges and agrees that
this waiver is an essential and material term of this Agreement, and without
such waiver the severance payments to Employee would not have been paid.
4. INDEMNIFICATION. Employee warrants and represents that
Employee has not previously assigned or transferred to any person not a party to
this Agreement, any released matter or any part or portion thereof and Employee
will defend, indemnify and hold harmless the Company from and against any claim
(including the payment of attorneys' fees and costs actually incurred whether or
not litigation is commenced) based on or in connection with or arising out of
any such assignment or transfer made, purported or claimed.
5. GENERAL PROVISIONS.
5.1. DISCLAIMER OF LIABILITY. While this Agreement resolves all
issues between the parties, as well as any future effects and
consequences of any acts or omissions, it does not constitute an
admission by any of the parties of any liability or wrongdoing.
Nothing in this Agreement or any related document will be
construed or admissible in any proceeding as evidence of
liability or wrongdoing by the Company or Employee.
5.2. ADDITIONAL DOCUMENTATION AND COOPERATION WITH FURTHER
PROCEEDINGS. From time to time and without charge or other
consideration, the parties will execute such additional
documentation, take any actions and cooperate in further
proceedings in connection with carrying out and effectuating the
intent and purpose of this Agreement and all transactions and
things contemplated by this Agreement.
5.3. ASSIGNMENT. This Agreement is a personal contract, and the
rights, interests and obligations of Employee under this
Agreement may not be sold, transferred, assigned, pledged or
hypothecated, except that this Agreement may be assigned by the
Company to any corporation or other business entity that succeeds
to all or substantially all of the business of the Company
through merger, consolidation, corporate reorganization or by
acquisition of all or substantially all of the assets of the
Company and that assumes the Company's obligations under this
Agreement. The terms and conditions of this Agreement will inure
to the benefit of and be binding upon any successor to the
business of the Company and Employee's heirs and legal
representatives.
5.4. AMENDMENTS; WAIVERS. Amendments, waivers, demands, consents
and approvals under this Agreement must be in writing and
designated as such. No failure or delay in exercising any right
will be deemed a waiver of such right.
B-12
5.5. INTEGRATION. This Agreement is the entire agreement between
the parties pertaining to its subject matter, and supersedes all
prior agreements and understandings of the parties in connection
with such subject matter.
5.6. GOVERNING LAW. This Agreement is to be interpreted in
accordance with the laws of the State of Oregon.
5.7. HEADINGS. Headings of sections are for convenience only and
are not a part of this Agreement.
5.8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which constitute one agreement.
5.9. SUCCESSORS AND ASSIGNS. This Agreement is binding upon and
inures to the benefit of each party and such party's respective
heirs, personal representatives, successors and assigns. Nothing
in this Agreement, express or implied, is intended to confer any
rights or remedies upon any other person.
5.10. INTERPRETATION. This Agreement is to be construed as a
whole and in accordance with its fair meaning. Any rule of law or
any legal decision that would require interpretation of any
claimed ambiguities in this Agreement against the party that
drafted it, has no application and is expressly waived.
5.11. TIME IS OF THE ESSENCE. Time is of the essence in the
performance of each and every term, provision and covenant in
this Agreement.
B-13
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
"Company"
CORILLIAN CORPORATION
By
--------------------------------
Its
-------------------------------
"Employee"
--------------------------------
Xxxxxx Xxxxx
B-14
