EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 14th day of March, 2001, by and between
Xxxxx Xxxxx (the "Executive") and Onyx Software Corporation, a Washington
corporation (the "Corporation").
For ease of reference, this Agreement is divided into the following parts, which
begin on the pages indicated:
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND BENEFITS
DURING EMPLOYMENT
(Sections 1 - 10, beginning on page 2)
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF TERMINATION
(Sections 11 - 13 beginning on page 7)
THIRD PART: TRADE SECRETS, ASSIGNMENT OF INVENTIONS, SUCCESSORS, MISCELLANEOUS
PROVISIONS, SIGNATURE PAGE
(Sections 14 - 18 beginning on page 10)
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND BENEFITS
DURING EMPLOYMENT
Section 1. Term of Employment
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(a) Basic Rule. The Corporation agrees to employ the Executive and the
Executive agrees to remain in employment with the Corporation, from April
4th, 2001 until the earliest of:
1. The date of the Executive's death; or
2. The date when the Executive's employment terminates pursuant to
Subsection (b), (c), (d) or (e) below.
(b) Early Termination or Resignation. The Corporation may terminate the
Executive's employment at any time and for any reason, with or without
Cause, by giving the Executive 30 days' advance written notice. The
Executive may terminate the Executive's employment for any reason by giving
the Corporation not less than 30 days' advance notice. In the event of
such termination, Executive shall be entitled to the compensation and
benefits as detailed in the Second Part of this Agreement.
(c) Termination for Cause. The Corporation may terminate the Executive's
employment at any time for Cause shown. For all purposes under this
Agreement, "Cause" shall mean (1) a willful and continued failure, after
notice from the Corporation's Board of Directors (the "Board") and an
opportunity to cure, to perform the Executive's duties under this
Agreement, other than a failure resulting from the Executive's complete or
partial incapacity due to physical or mental illness or impairment, (2) a
willful act by the Executive that constitutes gross misconduct and that
results in material harm to the Corporation, (3) a willful breach by the
Executive of a material provision of this Agreement or (4) a material and
willful violation of a federal or state law or regulation applicable to the
business of the Corporation that results in material harm to the
Corporation. For purposes of this Agreement, no act, or failure to act,
on the Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of
the Corporation. Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause unless and until the Corporation
provides notice to the Executive by providing a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held
for such purpose,(after reasonable notice to the Executive and an
opportunity for the Executive, together with counsel, to be heard before
the Board) finding that, in the good faith opinion of the Board, the
Executive was guilty of conduct set forth above and specifying the
particulars thereof in reasonable detail.
(d) Termination for Disability. The Corporation may terminate the Executive's
employment for Disability by giving the Executive written notice. For all
purposes under this Agreement, "Disability" shall mean that the Executive,
at the time the notice is given, has been unable to perform the Executive's
duties under this Agreement for a period of not less than three consecutive
months as a result of the Executive's incapacity due to
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physical or mental illness. In the event that the Executive resumes the
performance of substantially all of the Executive's duties under this
Agreement before the termination of the Executive's employment under this
Section becomes effective, the notice of termination shall automatically be
deemed to have been revoked.
(e) Termination of Agreement. This Agreement shall expire when all obligations
of the parties hereunder have been satisfied.
Section 2. Duties and Scope of Employment
----------
(a) Position. The Corporation agrees to employ the Executive for the term of
employment under this Agreement in the position of Executive Vice President
and Chief Financial Officer. The Executive shall be the Corporation's
highest ranking financial officer and shall report directly to the
Corporation's Chief Executive Officer. The Executive shall be given such
duties, responsibilities and authorities as are normally associated with or
appropriate to his position.
(b) Obligations. During the term of employment under this Agreement, the
Executive shall devote the Executive's full business efforts and time to
the business and affairs of the Corporation as needed to carry out his
duties and responsibilities hereunder subject to the overall supervision of
the Corporation's Chief Executive Officer. The foregoing shall not
preclude the Executive from engaging in appropriate civic, charitable or
religious activities or from devoting a reasonable amount of time to
private investments or from serving on the boards of directors of other
entities, as long as such activities and service do not interfere or
conflict with the Executive's responsibilities to the Corporation.
Section 3. Base Compensation
----------
During the term of employment under this Agreement, the Corporation agrees to
pay the Executive as compensation for services a base salary at the annual rate
of $325,000 or at such higher rate as the Corporation may determine from time to
time. Such salary shall be payable semi-monthly in accordance with the standard
payroll procedures of the Corporation. The Executive's base salary shall be
reviewed annually and increased, to the extent appropriate, based upon the
Executive's performance; provided, however, that the increase for any year shall
not be less than the increase in the Consumer Price Index for all Urban
Consumers for the preceding 12-month period. The annual compensation specified
in this Section 3, together with any increases in such compensation that the
Corporation may grant from time to time is referred to in this Agreement as
"Base Compensation."
Section 4. Leveraged Compensation Plan
----------
As a member of the executive team, the Executive will participate each year in
the Corporation's annual incentive compensation plan ("Leveraged Compensation
Plan"). Under the Leveraged Compensation Plan, the Executive will be eligible
for a target incentive bonus of sixty five percent (65%) of his Base
Compensation prorated, in the case of 2001, to the first day of Executive's
commencement of employment. The Executive's leveraged compensation will be
determined based upon the Corporation's achievement of designated financial and
business goals which are believed to
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be achievable given the Corporation's competitive and marketplace position, and
which are established, after consultation with the Executive no later than sixty
days after the beginning of each year. The leveraged compensation for the period
beginning with employment through June 30, 2001 will be, at a minimum, the
target incentive bonus amount, pro-rated for such initial period of employment.
Section 5. Signing Bonus
----------
The Executive shall receive a bonus (the "Signing Bonus") of one hundred
thousand dollars ($100,000), payable within thirty (30) days of the first day of
the Executive's commencement of employment. In the event that the Executive is
not employed with the Corporation at the one- year anniversary of the first day
of the Executive's commencement of employment, the Executive shall be required
to repay to the Corporation twenty five percent (25%) of the Signing Bonus, net
of income and employment taxes paid thereon, for each three month period during
the previous year in which the Executive was not so employed (or such pro-rated
amount for any partial period). In the event that the Executive is not employed
with the Corporation as a result of a Qualifying Termination (as defined in
Section 13 of this Agreement), no such repayment shall be required.
Section 6. Stock Options
----------
(a) Initial Grant. Subject to approval by the Corporation's Board of
Directors, the Executive shall receive an option to purchase five hundred
thousand (500,000) shares of the Corporation's common stock (the "Option")
within two (2) weeks of the Executive's first day of commencement of
employment, the exact date to be determined solely by the Board of
Directors ("Grant Date"), at an exercise price equal to the fair market
value of the Corporation's common stock on the Grant Date (fair market
value to be calculated as defined in the Corporation's 1998 Stock Incentive
Compensation Plan). Such option shall be consistent with the provisions
set forth in the Corporation's 1998 Stock Incentive Compensation Plan, and
shall provide that twenty five percent (25%) of the shares covered by the
Option shall vest on the one-year anniversary of the first day of
Executive's employment (the "Initiation Date"), and an additional 2.0833%
shall vest at the end of each month thereafter, with the result that 100%
of the options are vested four years from the Initiation Date.
(b) Additional Grants. Subject to approval by the Corporation's Board of
Directors, the Executive shall receive two additional options, each such
option to purchase fifty thousand (50,000) shares of the Corporation's
common stock (the "Additional Options") within two (2) weeks of the
Executive's first day of commencement of employment, the exact date to be
determined solely by the Board of Directors, at an exercise price equal to
the fair market value of the Corporation's common stock on the Grant Date
(fair market value to be calculated as defined in the Corporation's 1998
Stock Incentive Compensation Plan). Such Additional Options shall be
consistent with the provisions set forth in the Corporation's 1998 Stock
Incentive Compensation Plan, and shall provide that all of the shares
covered by each such Additional Option shall vest in their entirety on the
four year anniversary of the Initiation Date. Notwithstanding the
foregoing, each Additional Option shall further provide for immediate
acceleration of the entire fifty
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thousand (50,000) shares in the event that Executive achieves the relevant
milestones as set forth in Schedule 1 to this Agreement.
(c) Potential Future Grants. Executive shall be eligible for additional annual
option grants as provided by the Corporation. Provided that the
Executive's performance. meets expectations, the Executive shall receive
annual option grants to purchase no less than one hundred thousand
(100,000) shares, with the first such additional grant targeted for the one
year anniversary of this Employment Agreement. Each such additional grant
shall be at an exercise price equal to the fair market value on the date of
such grant and shall vest 2.0833% each month thereafter, with the result
that 100% of any such option is vested in four (4) years. For the
avoidance of doubt, the one hundred thousand (100,000) share targeted
future options shall be adjusted for future stock splits or similar changes
in capitalization to the same extent, if any, that the future option grants
are adjusted for other senior executives of the Corporation.
(d) The Corporation agrees to file a Form S-8, or other applicable registration
form, promptly after the issuance of all options granted hereunder.
Section 7. Executive Benefits
----------
During the term of employment under this Agreement, the Executive shall be
eligible to participate in the executive benefit plans and executive
compensation programs maintained by the Corporation on a basis no less favorable
than that applicable to the Corporation's other senior executives, including
(without limitation) 401(k) and employee stock purchase plans, life, disability,
medical, dental, vision, accident and other insurance programs, transportation
fringe benefit plans, paid vacations, and similar plans or programs, subject in
each case to the generally applicable terms and conditions of the plan or
program in question and to the discretion and determinations of any person,
committee or entity administering such plan or program. The Executive shall be
entitled to four weeks of paid vacation per year.
Section 8. Relocation
----------
Executive shall be entitled to reimbursement from the Corporation for his
relocation expenses in accordance with the Corporation's executive relocation
program as set forth in Schedule 2 to this Agreement. In addition, the
Corporation agrees that the Executive will normally spend three days a week in
the Bellevue or other appropriate Corporate office from the Executive's first
day of employment through June 30, 2001 and four days a week from July 1, 2001
through September 1, 2001. The Corporation agrees to provide hotel or
reasonable furnished apartment accommodations for the Executive's use in
Bellevue and to reimburse as business expenses, the Executive's weekly round
trip coach airfare and related expenses from the first day of the Executive's
employment through September 1, 2001.
In the event that the Executive is not employed with the Corporation at the one-
year anniversary of the first day of the Executive's commencement of employment,
the Executive shall be required to repay to the Corporation twenty five percent
(25%) of the Mortgage Assistance, Closing Cost Assistance and Shipment of
Household Goods fees detailed in Schedule 2 for each three month period during
the previous year in which the Executive was not so employed (or
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such pro-rated amount for any partial period). In the event that the Executive
is not employed with the Corporation as a result of a Qualifying Termination (as
defined in Section 11 of this Agreement), no such repayment shall be required.
Section 9. Legal Expenses
----------
Provided that the Executive commences employment with the Corporation, the
Corporation shall reimburse the Executive for up to ten thousand dollars
($10,000) in documented legal expenses incurred by the Executive in association
with this Agreement.
Section 10. Business Expenses and Travel
-----------
During the term of employment under this Agreement, the Executive shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with the Executive's duties hereunder. The
Corporation shall reimburse the Executive for such expenses upon presentation of
an itemized account and appropriate supporting documentation, all in accordance
with generally applicable policies.
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SECOND PART: COMPENSATION AND BENEFITS IN CASE OF TERMINATION
Section 11. Involuntary, Actual or Constructive Termination Without Cause or
----------- Disability
In the event that, during the term of this Agreement, the Executive's employment
terminates in a Qualifying Termination, as defined in Subsection (a), then,
following the effective date of the Release and Waiver of Claims described in
Section 11(e) (the "Release"), the Executive shall be entitled to receive the
payments and benefits described in Subsections (b) (c) and (d).
(a) Qualifying Termination. A Qualifying Termination occurs if:
(1) The Corporation terminates the Executive's employment for any reason
other than Cause or Disability; or
(2) The Executive separates from employment with the Corporation in
response to a "Constructive Termination". Constructive Termination is
defined as (i) a material change in Executive's duties,
responsibilities, or authorities (ii) a breach of Subsection 2(a), or
(iii) a relocation of the Corporation's headquarters of more than 35
miles from its location on the date hereof or a change in the
Executive's principal business location to a location other than the
corporate headquarters.
(b) Severance. The Corporation shall pay to the Executive within ten (10) days
after the effective date of the Release, in one lump sum, an amount equal
to the following:
(1) One hundred percent (100%) (i.e. twelve months) of the sum of the
Executive's Base Compensation and target incentive bonus in effect on
the date of the employment termination; plus
(2) A pro-rata portion of the Executive's unpaid target incentive bonus
in effect on the date of the employment termination; plus
(3) All earned, but unpaid, bonuses outside of the leveraged compensation
program owed to Executive as of the date of the termination.
(c) One (1) Year of Life Insurance and Health Plan Coverage. The coverage
described in this Subsection (c) shall be provided for a "Continuation
Period" beginning on the date when the employment termination is effective
and ending on the earlier of (1) the one year anniversary of the date when
the employment termination is effective or (2) the date of the Executive's
death. During the Continuation Period, the Executive (and, where
applicable, the Executive's dependents) shall be entitled to continue
participation in the group term life insurance plan and in the health care
plan for Executives maintained by the Corporation as if the Executive were
still an Executive of the Corporation. The coverage provided under this
Subsection (c) shall run concurrently with and shall be offset against any
continuation coverage under Part 6 of Title I of the Executive Retirement
Income Security Act of 1974, as amended. Where applicable, the Executive's
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compensation for purposes of such plans shall be deemed to be equal to the
Executive's compensation (as defined in such plans) in effect on the date
of the employment termination. To the extent that the Corporation finds it
undesirable to cover the Executive under the group life insurance and
health plans of the Corporation, the Corporation shall provide the
Executive (at its own expense) with the same level of coverage under
individual policies.
(d) Acceleration of Vesting. As of the effective date of termination, all
stock options not previously vested will become immediately vested and
shall remain exercisable for a period of not less than 120 days; provided,
however, that if the options are not exercisable during portion of such 120
day period, by reason of applicable securities laws, the rules of any stock
exchange on which the shares are listed, any agreement with an underwriter,
or any agreement with or policy of the Corporation, the 120- day period
shall be correspondingly extended.
(e) Release of Claims. As a condition to the receipt of the payments and
benefits described in this Section 11, the Executive shall be required to
execute a release substantially in the form attached hereto of all claims
arising out of the Executive's employment or the termination thereof
including, but not limited to, any claim of discrimination under state or
federal law, but excluding claims for benefits accrued under the
Corporation's employee benefit plans, and claims for indemnification from
the Corporation under any indemnification agreement with the Corporation,
its certificate of incorporation and by-laws or applicable law or claims
for directors and officers' insurance coverage.
(f) Conditions to Receipt of Payments and Benefits. In view of the Executive's
position and his access to Confidential Information, as defined below, the
Executive agrees that, as a condition to the receipt of payments and
benefits described in this Section 11, the Executive shall not, for a
period of one (1) year, without the Corporation's prior written consent,
directly or indirectly, alone or as a partner, joint venturer, officer,
director, Executive, consultant, agent or stockholder (other than a less
than 5% stockholder of a publicly traded company) (i) engage in any
activity which is in competition with the business, the products or
services of the Corporation, (ii) solicit any of the Corporation's
employees, consultants or customers, (iii) hire any of the Corporation's
employees or consultants in an unlawful manner or actively encourage
employees or consultants to leave the Corporation, or (iv) otherwise breach
his Confidential Information obligations. Notwithstanding the foregoing,
nothing herein shall restrict the Executive from employment with any entity
which is in competition with the Corporation, if (a) the business unit of
such entity which competes with the Corporation is not a principal
business of such entity and (b) if the Executive's duties with respect to
such entity do not involve the activities which are in competition with the
Corporation
(g) No Mitigation. The Executive shall not be required to mitigate the amount
of any payment or benefit contemplated by this Section 11, nor shall any
such payment or benefit be reduced by any earnings or benefits that the
Executive may receive from any other source.
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Section 12. Termination Resulting from a Change in Control
-----------
In the event of a Qualifying Termination occurring within two years after a
"Corporate Transaction" described in Section 2.6 of the 1998 Stock Incentive
Compensation Plan), the Executive's severance and benefits under Subsections
11(b) and 11(c) above shall be based upon an eighteen-month period rather than a
twelve-month period.
Section 13. Other Terminations Under This Part
-----------
If termination of employment, actual or constructive, is not described in
Section 11, then the Executive is entitled only to the compensation, benefits
and reimbursements payable under the terms of Part I of this Agreement for the
period preceding the effective date of the termination including any disability
or death benefits to which Executive (or his estate or beneficiary(s)) may be
entitled as a result of termination of his employment on account of Disability
or death. The payments under this Agreement shall fully discharge all
responsibilities of the Corporation to the Executive upon termination of the
Executive's employment. This Section 13 applies, without limitation, to any
termination of employment initiated by the Executive (except an Executive-
initiated termination that is described in Paragraph 2 of Section 11(a)),
termination of employment caused by the Executive's death or Disability,
termination of the Executive for Cause, and any constructive termination (not
described in Section 11).
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THIRD PART: TRADE SECRETS, ASSIGNMENT OF INVENTIONS SUCCESSORS, MISCELLANEOUS
PROVISIONS, SIGNATURE PAGE
Section 14. Confidential Information
-----------
(a) Acknowledgement. The Corporation and the Executive acknowledge that the
services to be performed by the Executive under this Agreement are unique
and extraordinary and that, as a result of the Executive's employment, the
Executive will be in a relationship of confidence and trust with the
Corporation and will come into possession of "Confidential Information" (1)
owned or controlled by the Corporation, (2) in the possession of the
Corporation and belonging to third parties or (3) conceived, originated,
discovered or developed, in whole or in part, by the Executive. As used
herein "Confidential Information" includes trade secrets and other
confidential or proprietary business, technical, personnel or financial
information, whether or not the Executive's work product, in written,
graphic, oral or other tangible or intangible forms, including but not
limited to specifications, samples, records, data, computer programs,
drawings, diagrams, models, customer names, ID's or e-mail addresses,
business or marketing plans, studies, analyses, projections and reports,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under
their direction (including attorney work product), and software systems and
processes, unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a
result of the Executive's actions. Any information that is not readily
available to the public shall be considered to be a trade secret and
confidential and proprietary, even if it is not specifically marked as
such, unless the Corporation advises the Executive otherwise in writing.
(b) Nondisclosure. The Executive agrees that, except in the good faith
performance of his duties under this Agreement or as otherwise required by
law or legal process, he will not, without the prior written consent of the
Corporation, directly or indirectly use Confidential Information for his
own benefit or intentionally disclose Confidential Information to any
unauthorized person, during or after the Executive's employment. The
Executive will keep the Confidential Information in strictest confidence
and trust. This Section 14 shall apply indefinitely, both during and after
the term of this Agreement.
(c) Surrender Upon Termination. The Executive agrees that in the event of the
termination of the Executive's employment for any reason, the Executive
will promptly deliver to the Corporation all property belonging to the
Corporation, including all documents and materials of any nature pertaining
to the Executive's work with the Corporation, and will not take with the
Executive any documents or materials of any description, or any
reproduction thereof of any description, containing or pertaining to any
Confidential Information. It is understood that the Executive is free to
use information that is in the public domain (not as a result of a breach
of this Agreement).
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Section 15. Inventions and Creations Belong to the Corporation
-----------
Any and all inventions, discoveries, improvements, or creations (collectively
"Creations") which the Executive has conceived or made or may conceive or make
during the period of employment under this Agreement in any way, directly or
indirectly, connected with the Corporation's business shall be the sole and
exclusive property of the Corporation. The Executive agrees that all
copyrightable works created by the Executive or under the Corporation's
direction in connection with the Corporation's business are "works made for
hire" and shall be the sole and complete property of the Corporation and that
any and all copyrights to such works shall belong to the Corporation. To the
extent such works are not deemed to be "works made for hire," the Executive
hereby assigns all proprietary rights, including copyright, in these works to
the Corporation without further compensation.
The Executive further agrees to (i) disclose promptly to the Corporation all
such Creations which the Executive has made or may make solely, jointly, or
commonly with others, (ii) assign all such Creations to the Corporation, and
(iii) execute and sign any and all applications, assignments, or other
instruments which the Corporation may deem necessary in order to enable it, at
its expense, to apply for, prosecute, and obtain copyrights, patents or other
proprietary rights in the United States and foreign countries or in order to
transfer to the Corporation all right, title, and interest in said Creations.
Section 16. NOTICE REQUIRED BY REVISED CODE OF WASHINGTON 49.44.140
-----------
Any assignment of Inventions required by this Agreement does not apply to an
Invention for which no equipment, supplies, facilities or trade secret
information of the Company was used and which was developed entirely on the
employee's own time, unless (a) the Invention relates (i) directly to the
business of the Company or (ii) to the Company's actual or demonstrably
anticipated research or development, or (b) the Invention results from any work
performed by the employee for the Company.
Section 17. Successors
-----------
(a) Corporation's Successors. The Corporation shall require any successor
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Corporation's business and/or assets, by an agreement in substance and form
satisfactory to the Executive, to assume this Agreement and to agree
expressly to perform this Agreement in the same manner and to the same
extent as the Corporation would be required to perform it in the absence of
a succession. The Corporation's failure to obtain such agreement prior to
the effectiveness of a succession shall be a breach of this Agreement and
shall entitle the Executive to all of the compensation and benefits to
which the Executive would have been entitled hereunder if the Corporation
had involuntarily terminated the Executive's employment without Cause or
Disability, on the date when such succession becomes effective. For all
purposes under this Agreement, the term "Corporation" shall include any
successor to the Corporation's business and/or assets that executes and
delivers the assumption agreement
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described in this Subsection (a) or that becomes bound by this Agreement by
operation of law.
(b) Executive's Successors. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of, and be enforceable by, the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
Section 18. Miscellaneous Provisions
-----------
(a) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and by an authorized officer of the
Corporation (other than the Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another
time.
(b) Whole Agreement. No agreements, representations or understandings (whether
oral or written and whether express or implied) that are not expressly set
forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof.
(c) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified
mail, return receipt requested and postage prepaid. In the case of the
Executive, mailed notices shall be addressed to the Executive at the home
address that the Executive most recently communicated to the Corporation in
writing. In the case of the Corporation, mailed notices shall be addressed
to its corporate headquarters, and all notices shall be directed to the
attention of its General Counsel.
(d) No Setoff. There shall be no right of setoff or counterclaim, with respect
to any claim, debt or obligation, against payments to the Executive under
this Agreement.
(e) Choice of Law. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Washington.
Jurisdiction and venue for any claims arising under this Agreement shall
lie exclusively in King County, Washington State, USA.
(f) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(g) No Assignment of Benefits. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation
of law, including (without limitation) bankruptcy, garnishment, attachment
or other creditor's process, and any action in violation of this Subsection
(i) shall be void.
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(h) Employment at Will; Limitation of Remedies. The Corporation and the
Executive acknowledge that the Executive's employment is at will, as
defined under applicable law. If the Executive's employment terminates for
any reason, the Executive shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement.
(i) Employment Taxes. All payments made pursuant to this Agreement shall be
subject to withholding of applicable taxes.
(j) Benefit Coverage Non-Additive. In the event that the Executive is entitled
to life insurance and health plan coverage under more than one provision
hereunder, only one provision shall apply, and neither the periods of
coverage nor the amounts of benefits shall be additive.
(k) Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement (or the breach thereof) shall be settled by
final, binding and non-appealable arbitration in Seattle, Washington by
three arbitrators. Subject to the following provisions, the arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association (the "Association") then in effect. One of the arbitrators
shall be appointed by the Corporation, one shall be appointed by the
Executive, and the third shall be appointed by the first two arbitrators.
If the first two arbitrators cannot agree on the third arbitrator within 30
days of the appointment of the second arbitrator, then the third arbitrator
shall be appointed by the Association. Any award entered by the
arbitrators shall be final, binding and nonappealable and judgment may be
entered thereon by either party in accordance with applicable law in any
court of competent jurisdiction. This arbitration provision shall be
specifically enforceable. The arbitrators shall have no authority to
modify any provision of this Agreement or to award a remedy for a dispute
involving this Agreement other than a benefit specifically provided under
or by virtue of the Agreement. In the event the subject matter of the
arbitration proceedings is whether or not the Executive was terminated for
Cause, and Executive prevails on substantially all material issues of
such claim, the Corporation shall be responsible for up to an maximum of
$50,000, such figure which may be comprised of (a) fees of the American
Arbitration Association and the arbitrators or (b) any expenses relating
to the conduct of the arbitration (including the Executive's reasonable
attorneys' fees and expenses). In the event the subject matter of the
arbitration proceedings is other than whether or not the Executive was
terminated for Cause, Executive shall be entitled to recover the monies
contemplated above if he is awarded a material amount under such claim.
Except as otherwise provided above, each party shall be responsible for
its own expenses relating to the conduct of the arbitration (including
reasonable attorneys' fees and expenses) and shall share the fees of the
American Arbitration Association equally. Nothing in this paragraph shall
be construed as precluding the Corporation from bringing a civil action in
court for injunctive relief or other equitable relief relating to the
breach or threatened breach of the agreements set forth in Sections 11(f)
and 14 of this Agreement, provided that if a court determines that the
Corporation is not entitled to such relief, the Corporation shall reimburse
the Executive for his reasonable attorney's fees and expenses incurred in
the defense of such action.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Corporation by its duly authorized officer, as of the day and year first
above written. Executive has consulted (or has had the opportunity to consult)
with his own counsel (who is other than the Corporation's counsel) prior to
execution of this Agreement.
/s/ Xxxxx X. Xxxxx
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Executive
ONYX SOFTWARE CORPORATION
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Its: Chief Executive Officer
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Schedule 1
Milestones for Stock Acceleration
As contemplated in Section 6(b) of this Agreement, each of the two option grants
detailed therein shall be accelerated so as to vest 100% immediately upon
achievement of the relevant metric detailed below.
1. The first additional option grant of 50,000 shares shall immediately vest
and become exercisable at such time as the Corporation's stock price trades
for a period of thirty (30) consecutive days at an average price greater
than or equal to $30.00 per share. Average price is defined as the average
high and low per share sales price of the Corporation's common stock as
reported by the Nasdaq National Market.
2. The second additional option grant of 50,000 shares shall immediately vest
and become exercisable at such time as the number of financial analysts
covering the Corporation increases by a minimum of three relative to the
number of financial analysts covering the Corporation as of the date of this
Employment Agreement. At least one of the three new financial analysts
commencing coverage of the Corporation must be an analyst of either Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxx or Xxxxxxx Xxxxx. Each of the 3 new analysts must
initiate their coverage with a "buy" rating or better, and each such rating
must have a duration of at least ninety days.
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Schedule 2
Onyx Executive Relocation Program
The following summary is provided of your relocation package. Any excess
weight, special charges or storage should be authorized by the Human Resources
Department.
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Benefit Executive
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Relocation Allowance - Incidentals $10,000
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House Hunting Trip Up to 7 days
# of trips 3
Lodging 7 Nights
Meals 7 Days
Airfare Employee & Spouse (one trip with family)
CAR RENTAL 7 days
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Home Finding Assistance Yes
Pre-move Counseling
Cost of Living Analysis
Relocation Package
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Rental Assistance Yes
Market Research
4 hour tour
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Expense Tracking Yes
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Tax Filing Assistance Yes
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Work Permit Yes
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Temporary Living Up to 180 days
RENTAL CAR Up to 60 days or until owner car arrives
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Shipment of Household Goods Full Pack/Unpack
Weight Full Weight
Storage 45 days
Insurance Up to $1,000,000
Shipment of Auto N/A
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Mortgage Assistance Provided that Executive has used all reasonable
efforts to market and sell his home in a timely
fashion, Onyx will pay the lesser of
Executive's two documented carrying costs(ie.
for his Chicago or Seattle home) until such
time that Executive sells his Chicago home, up
to a maximum of $ 19,625 per month, and
provided that in no event shall such period
exceed six (6) months. The estimated carrying
costs would be the value invested in the house
(in Winnetka it is about 3,000,000) times
(6.875% interest plus 1% property tax).
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Closing Cost Assistance Onyx will pay for Executive's documented,
direct closing costs associated with selling
his Chicago home up to a maximum reimbursement
of $150,000. Onyx will pay for Executive's
documented, direct closing costs associated
with purchasing a new Seattle home, up to a
maximum reimbursement of $25,000.
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