SEVERANCE AGREEMENT
This Severance Agreement (this "Agreement") is entered into
this 24th day of November, 2000, by and between CORILLIAN CORPORATION, an Oregon
corporation, and its subsidiaries and divisions (the "Company") and _________
__________ ("Participant").
RECITALS
A. Participant serves as an employee of Xxxxxxx Associates,
Inc., a California corporation and subsidiary of the Company ("Xxxxxxx").
B. The Company agreed to enter into this Agreement with
Participant in connection with its purchase of all outstanding capital stock of
Xxxxxxx.
AGREEMENT
1. SEVERANCE; TERMINATION OF AGREEMENT. Subject to the terms
and conditions in this Agreement, the Company will pay Participant any accrued
bonuses or commissions through the date of termination and one-half of
Participant's Base Salary within 5 business days after the satisfaction of the
conditions set forth in Section 3 if such Participant's employment with the
Company and all of its subsidiaries or affiliates is terminated (i) by the
Company for any reason other than Cause or (ii) by the Participant for Good
Reason. No payment will be made hereunder if a Participant's employment
terminates because of his or her Disability or death. Payment under this Section
will be in lieu of any amount that may be otherwise owed to a Participant for
the loss of employment. The payment referred to above is not intended to
preclude other compensation or benefits as may be authorized by the Board of
Directors of the Company, from time to time. "Base Salary" means the annual base
salary of Participant, payable at the annualized rate by the Company, in effect
at the time of his or her termination. This Agreement and all rights of
Participant hereunder will terminate upon the first anniversary of this
Agreement.
"CAUSE" means dishonesty, fraud, misconduct,
unauthorized use or disclosure of confidential information or
trade secrets, or conviction or confession of a crime
punishable by law (except minor violations), in each case as
determined by the Compensation Committee of the Company, and
its determination shall be conclusive and binding.
"DISABILITY" means a mental or physical impairment
of the Participant that is expected to result in death or that
has lasted or is expected to last for a continuous period of
12 months or more and that causes the Participant to be
unable, in the opinion of the Company, to perform his or her
duties for the Company and to be engaged in any substantial
gainful activity.
"GOOD REASON" means (i) a material diminution in the
Participant's duties, responsibilities or title or (ii) a
reduction in Participant's Base Salary or other benefits,
except, with respect to other benefits, if such benefits are
reduced for other similarly situated employees of the Company.
2. TERMINATION FOR CAUSE PROCEDURE. To terminate a
Participant's employment under this Agreement for Cause, the Company must give
Participant a notice of termination that (a) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Participant's employment under this Plan and (b) specifies the date of
termination (which date shall be not more than 15 days after the giving of such
notice). Participant will have an opportunity to be heard by giving written
notice to the Company within five business days after the date of termination
specified in the Company's notice of termination. A termination is final in all
respects on the date three days following an opportunity to be heard by
Participant's supervisors and written notice to the Participant that such
employee's service is terminated. The failure by the Company to set forth in the
notice of termination any fact or circumstance that contributes to a showing of
grounds for Cause will not waive any right of the Company hereunder or preclude
the Company from asserting such fact or circumstance in enforcing the Company's
rights hereunder.
3. RELEASE. As a condition to the entitlement to and receipt
of any payments under this Agreement, after termination, but at least eight days
before any payments are due, Participant must execute and deliver the Release
attached hereto as Exhibit A. To receive payments under this Agreement, the
Release must not have been rescinded or revoked as permitted thereby.
4. RELATIONSHIP TO OTHER PLANS AND AGREEMENTS. The payments
under this Agreement will not be offset by any amounts that Participant is
entitled to receive under the Company's stock incentive plans or a retirement or
pension plan qualified under Section 501 of the Internal Revenue Code of 1986,
as amended (the "Code"). Payments under this Agreement will be offset by any
other amounts received by Participant as severance or termination pay under any
other plan or policy of the Company or any of its subsidiaries or affiliates. In
addition, this Agreement will supersede and terminate any other agreements or
plans, whether in writing or not, between the Company or any of its subsidiaries
or affiliates and Participant with respect to severance payments or termination
pay. Any payments under this Agreement will not in any way be counted or applied
to increase benefit accruals or Company contributions or obligations under any
other benefit plans or policies of the Company.
5. LIMITATION ON BENEFITS. Notwithstanding any other provision
of this Agreement, in no event will Participant receive or be entitled to
receive any amount in the aggregate under this Agreement and all other plans or
agreements with the Company that constitutes or would constitute an "excess
parachute payment" (as that term is defined in Section 280G of the Code).
6. OTHER AGREEMENTS.
6.1. WITHHOLDING; DEDUCTIONS. All payments made under this
Agreement will be subject to applicable taxes, withholding and
other required, normal or elected employee deductions.
6.2. OFFSETTING OBLIGATIONS. The Company's obligation to pay
Participant the severance payments provided herein will be
reduced by the amount of any
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obligations then owed by Participant to the Company and by
any applicable amounts under Sections 4 and 5.
7. GENERAL PROVISIONS
7.1. ASSIGNMENT. This Agreement is a personal contract, and
the rights, interests and obligations of Participant under
this Agreement may not be sold, transferred, assigned, pledged
or hypothecated, except that the Company's obligations under
this Agreement may be delegated to any entity by contract or
law that succeeds to all or substantially all of the Company's
business or assets. 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 any of Participant's heirs
and legal representatives.
7.2. 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.
7.3. 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 the subject matter.
7.4. GOVERNING LAW. This Agreement is to be interpreted in
accordance with the laws of the State of California. The
Participant and the Company hereby expressly consent to the
personal jurisdiction of the state and federal courts located
in Los Angeles, California for any action or proceeding
arising from or relating to this Agreement.
7.5. HEADINGS. Headings of sections are for convenience only
and are not a part of this Agreement.
7.6. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which constitute one agreement.
7.7. 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.
7.8. EXPENSES. Each party will pay its own expenses in the
negotiation and preparation of this Agreement.
7.9. REPRESENTATION BY COUNSEL; INTERPRETATION. Each party
acknowledges that it has had the opportunity to be represented
by counsel in connection with this Agreement. This Agreement
is to be construed as a whole and in accordance with its fair
meaning. Any rule of law, including, but not limited to,
Section 1654 of the California Civil Code, or any legal
decision that would require interpretation
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of any claimed ambiguities in this Agreement against the
party that drafted it, has no application and is expressly
waived.
7.10. NOTICES. Any notice to be given hereunder must be in
writing and delivered to the following addresses (or to
another address as either designates in writing). Such notice
will be effective (a) if given by telecopy or if confirmed by
return telecopy, (b) one business day after delivery through a
generally recognized and reputable overnight courier or
messenger for next day delivery or (c) if given by mail or any
other means, when actually delivered to the address specified.
IF TO THE COMPANY: IF TO PARTICIPANT:
Corillian Corporation At the most recent address on
3400 NW Xxxx Xxxxx Place the books and records of
Xxxxxxxxx, XX 00000 the Company for Participant
Attention: Xxxxx X. Xxxxx
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"Company"
CORILLIAN CORPORATION
By ____________________________
Its ___________________________
"Participant"
_______________________________
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EXHIBIT B
RELEASE AGREEMENT
This Release Agreement (this "Agreement") is entered into this
___ day of _________, 20__, by and between Corillian Corporation, an Oregon
corporation, and its subsidiaries and divisions (the "Company"), and
________________ ("Employee").
RECITALS
A. The Company and the Employee are parties to a Severance Agreement,
dated as of ____________ ___, 2000 (the "Severance Agreement").
B. Under the terms of the Severance Agreement, Employee agreed to enter
into this Agreement.
NOW, THEREFORE, for in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. SEVERANCE; RELEASE. In consideration of the payments to be
made to Employee under the Severance 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 indemnify and hold harmless the
Company and each of its related companies or entities, and each of its
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.
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
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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. REVOCATION. Employee was informed that Employee has seven
(7) days following the date of execution of this Agreement in
which to revoke this Agreement.
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 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. Participant has been advised of the
existence of Section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding such provision, this Agreement constitutes a full release in
accordance with its terms. Participant knowingly and voluntarily waives the
provisions of Section 1542, as well as any other statute, law, or rule of
similar effect, and acknowledges and agrees that this waiver is an essential and
material term of this Agreement, and without such waiver the severance payments
to Participant 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
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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.
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 California.
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.
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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, including, but not limited to, Section 1654 of the
California Civil Code, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"Company"
CORILLIAN CORPORATION
By ____________________________
Its ___________________________
"Employee"
--------------------------------
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