Exhibit 10(a)
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE
(this "Agreement") is made and entered into as of November
1, 1996 ( the "Effective Date"), by and among [ ] a
resident of Xxxxxx County, Texas ("Employee"), and SUNRIVER
CORPORATION, a Delaware corporation ("SRC"), TradeWave
Corporation, a Delaware corporation ("TWC"), and Boundless
Technologies, Inc., a Delaware corporation ("BTI") (SRC, TWC, and BTI
are sometimes collectively referred to in this Agreement as the
"Company").
W I T N E S S E T H:
WHEREAS, Employee has been employed as an executive
officer of SRC and/or TWC and/or BTI; and
WHEREAS, Employee and SRC and/or TWC have entered
into a certain Employment Agreement (the "Employment
Agreement"), a copy of which is attached as Exhibit A to this
Agreement; and
WHEREAS, the Company (expressly including SRC and/or TWC,
as the employer of Employee pursuant to the Employment Agreement)
and Employee wish to end the employment relationship between
them and to terminate the Employment Agreement and to do so on
amicable and mutually agreeable terms; and
WHEREAS, Employee and SRC and/or TWC have entered into one
or more Stock Option Agreements (Incentive Stock Option) (whether
one or more, the "Stock Option Agreement"), a schedule of which
is attached as Exhibit B to this Agreement, pursuant to which SRC
and/or TWC have granted options to Employee (the "Options") to
purchase shares of common stock of SRC and/or TWC ("Common
Stock"), upon the terms and subject to the conditions contained
in the Stock Option Agreement; and
WHEREAS, Employee and the Company (expressly including SRC
and/or TWC, as the grantor of the Options to Employee pursuant to
the Stock Option Agreement) desire to accelerate the vesting of
the Options and to provide for the exercise of the Options as to
such shares during the three -year period following the Effective
Date; and
WHEREAS, Employee and the Company desire to settle any
open issues which may exist between them, including, but not
limited to, any open issues that arise out of Employee's
employment with the Company (expressly including SRC and/or TWC,
as the employer of Employee pursuant to the Employment Agreement)
or his separation from such employment;
NOW, THEREFORE, in consideration of the premises and mutual
promises herein contained, and other consideration, the receipt
and sufficiency of which is hereby acknowledged, it is agreed as
follows:
1. TERMINATION OF EMPLOYMENT AGREEMENT; VOLUNTARY
RESIGNATION
A. The Employment Agreement is hereby terminated and,
except for provisions which by their terms are to survive the
termination of the Employment Agreement (expressly including
those included in Section 6 of the Employment Agreement, if the
Employment Agreement is between Employee and SRC, and Section 5
of the Employment Agreement, if the Employment Agreement is
between Employee and TWC, subject, however, to the modifications
to the non-competition covenant contained in the Employment
Agreement that are provided for in Section 6.B. of this
Agreement), is of no further force or effect.
B. Employee, concurrently with the Effective Date of this
Agreement, shall voluntarily resign from employment with the
Company (expressly including SRC and/or TWC, as the employer of
Employee pursuant to the Employment Agreement) by the delivery to
the Company of a letter of resignation in the form of Exhibit C
attached to this Agreement (the "Letter of Resignation"), and
shall thereafter be relieved of all day-to-day duties and
responsibilities as an employee of the Company (expressly
including SRC and/or TWC, as the employer of Employee pursuant to
the Employment Agreement). Employee's resignation shall include
all offices held by Employee in the Company and any Affiliates of
the Company for which Employee has been elected an officer.
C. Employee, concurrently with the Effective Date of this
Agreement, by the delivery to the Company of the Letter of
Resignation, shall voluntarily resign as a director of the
Company and of each Affiliate of the Company on whose board of
directors Employee serves (provided, that Xxxxxx Xxxxxxxxxx does
not intend to, and will not be required to, resign from the board
of directors of SunRiver Group, Inc., a Delaware corporation).
D. Employee, concurrently with the Effective Date of this
Agreement, by the delivery to the Company of the Letter of
Resignation, shall voluntarily resign as a voting trustee under
the Voting Trust Agreement dated as of September 27, 1996, among
SRC, TWC, Xxxxxx Xxxxxxx, and Employee, if Employee is a party to
the Agreement.
2. CONSIDERATION FROM THE COMPANY; CERTAIN AGREEMENTS
OF THE COMPANY
A. Upon Employee's execution of this Agreement
and submission of the Letter of Resignation as provided in
Section 1, the Company agrees to pay the amounts set forth as
"Separation Payments" (herein so called) on Exhibit D
attached to this Agreement, in the manner set forth on
Exhibit D. Employee understands and agrees that the Separation
Payments are all the payments that he will receive from the
Company and that he will not be entitled to receive any
further salary, bonuses, accrued but unused vacation, expense
reimbursement, or similar payments from the Company after the
effective date of Employee's resignation. Employee (i)
acknowledges that the Separation Payments may be less than,
and are in lieu of, the severance payments that would be
payable to Employee under certain circumstances pursuant to
the Employment Agreement, and (ii) understands and agrees that
the Separation Payments to be made by the Company are more than
he would be entitled to receive as a terminating/resigning
employee under the Company's normal policies and
procedures and represents sufficient consideration for the
releases contained in this Agreement and the promises of
confidentiality, non-competition, and non-solicitation provided
in the Employment Agreement and reaffirmed by Employee in this
Agreement.
B. As additional consideration to Employee, and
notwithstanding the terms of the Stock Option Agreement, the
Company (expressly including SRC and/or TWC, as the grantor of
the Options to Employee pursuant to the Stock Option Agreement)
hereby agrees to accelerate the vesting of the Options as to all
the shares of the Common Stock covered by the Stock Option
Agreement (the "Vested Option Shares"), with the effect that,
upon the Effective Date and for the period of three years
following the Effective Date, Employee shall be entitled to
purchase the Vested Option Shares in the manner, and for the
purchase price, contemplated by the Stock Option Agreement;
provided, that upon the exercise of the Options as to any or all
of the Vested Option Shares, Employee and SRC will enter into an
agreement, in form and substance acceptable to SRC and its
counsel, under the terms of which Employee will agree to a
partial lock-up of the Vested Option Shares for a period of six
months following the Effective Date, during which Employee will
agree that he will not sell more than 50% of the Vested Option
Shares.
C. The Company agrees to take all steps to cause
Employee to be vested in the retirement and/or pension plans
of the Company to which Employee is entitled by virtue of
his employment.
D. The Company agrees to take all reasonable
steps to cause any and all life insurance policies
maintained by the Company on Employee's life to be transferred
and assigned to Employee; provided, that the Company makes no
representations or warranties to Employee with respect to the
assignability of any such life insurance policies; and
provided, further, that Employee (i) shall assume all
responsibility for the payment of premiums and the performance
of all other obligations of the owner of any such policies, and
(ii) shall execute and deliver to the Company and the issuers of
any such policies any and all such agreements or other documents
as may be requested by the Company and/or such issuers to
evidence the assumption of such responsibility and obligations.
E. The Company agrees to take all reasonable steps
and use its best efforts to maintain in force and effect, for a
period of not less than six years following the Effective Date,
director's and officer's liability insurance policies
identical to, or substantially similar to, the director's and
officer's liability insurance policies of the Company currently
in effect, naming Employee as an insured; provided, that the
Company makes no representations and warranties to Employee
with respect to its ability to obtain any such policies in the
future in the event the policies currently in existence
terminate or are canceled by the issuers thereof.
F. In the event Employee dies before all amounts
payable to Employee under the terms of this Section 2 are
paid, all unpaid amounts shall be paid to the personal
representative of Employee's estate in accordance with the terms
of this Agreement. The personal representative of Employee's
estate shall also have the right to exercise any of the
Options which have not been exercised by the date of
Employee's death, during the period of exercise provided in this
Agreement.
G. SRC, TWC, and BTI are intended to be joint
obligors under this Agreement, and each of SRC, TWC, and BTI
agrees that it is obligated to perform the agreements of the
Company set forth in this Section 2 as if it were the "Company"
named herein.
3. MUTUAL RELEASE
A. As a material inducement to the Company to enter into
this Agreement, Employee hereby irrevocably and
unconditionally releases, acquits, and forever discharges the
Company and each of the Company's stockholders (other than
SunRiver Group, Inc.), predecessors, successors, assigns,
agents, directors, officers, employees, representatives,
attorneys, parent companies, divisions, subsidiaries, and
Affiliates (other than SunRiver Group, Inc.) (and agents,
directors, officers, employees, representatives, and attorneys
of such parent companies, divisions, subsidiaries, and
Affiliates), past or present, and all persons acting by,
through, under, or in concert with any of them, or any of
them, including without limitation, Xxxxxxx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxxxxxx, Xxxxx
Xxxx, Xxxxxx Xxxxxxxx, and the law firms and lawyers of Xxxxx
Xxxxxxx Rain Xxxxxxx, P.C. (including, but not limited to,
Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxx, and Xxxxxx X. Xxxxxx),
Xxxxxx & Carnelutti (including, but not limited to, Xxxxx
Xxxxx), and Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx (including, but
not limited to, Xxx Xxxxxxxx) (all of the foregoing are
collectively called "Releasees"), from any and all charges,
complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action,
suits, rights, demands, costs, losses, debts, and expenses
(including attorneys' fees and costs actually incurred), of any
nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, any rights arising out of alleged
violations of any contract, express or implied, any covenant of
good faith and fair dealing, express or implied, any tort, any
legal restrictions on the Company's right to terminate,
discipline, or otherwise manage employees, or any federal, state,
or other governmental statute, regulation, or ordinance,
including, but without limitation, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Civil Rights Act of 1866, the
Americans With Disabilities Act, the Fair Labor Standards Act,
the Employee Retirement Income Security Act, the Consolidated
Omnibus Budget Reconciliation Act, the Occupational Safety and
Health Act, the Family and Medical Leave Act, the Texas
Commission on Human Rights Act, the Texas Payday Law, and the
Texas Workers' Compensation Act, which Employee now has or claims
to have, or which Employee at any time heretofore had, or claimed
to have, against each or any of the Releasees arising out of or
related to any matter, event, fact, act, omission, cause, or
thing which existed, arose, or occurred on or prior to the
execution of this Agreement. Without limiting the generality of
the foregoing, and except as expressly provided herein, Employee
expressly releases Releasees from any claim Employee may have, or
claim to have, with respect to capital stock, stock options,
stock warrants, or other equity securities that might have been
issued or granted to Employee in the future by the Company.
B. As a material inducement to Employee to enter into this
Agreement, the Company hereby irrevocably and unconditionally
releases, acquits, and forever discharges Employee and each of
Employee's consultants and attorneys, including without
limitation, the law firms and lawyers of XxXxxxxx & Xxxxx, P.C.
(including, but not limited to, Xxxx XxXxxxxx, Xx. and Xxxxxx
Socks), Xxxxxxx & Xxxxx, L.L.P. (including, but not limited to,
Xxxx Xxxxxxxx and Xxxxx Xxxxx), and Xxxxxxxx, Xxxxxx & Finger
(including, but not limited to, Xxx Xxxxxxxxx and Xxx Xxxx), from
any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses,
debts, and expenses (including attorney's fees and costs actually
incurred), of any nature whatsoever, known or unknown, suspected
or unsuspected, including, but not limited to, any rights arising
out of alleged violations of any contract, express or implied,
any covenant of good faith and fair dealing, express or implied,
or any tort, which the Company, and/or its respective officers
and directors, now has, or claims to have, or which the Company
at any time heretofore had, or claimed to have, against Employee
or any other party released herein arising out of or related to
any matter, event, fact, act, omission, cause, or thing which
existed, arose, or occurred on or prior to the execution of this
Agreement.
C. Nothing contained in this Agreement is intended to limit, or
shall be construed as limiting, the right of the Company or
Employee to assert any claim against the other or against any
other person or entity, related to any action or omission that
occurs after the Effective Date, expressly including
any violation of any covenant or agreement contained in
this Agreement.
[Note: The following bracketed language appears only in Xxxxxx
Xxxxxxxxxx'x agreement: Nothing contained in this Agreement
is intended to limit, or shall be construed as limiting,
(a) the right of Xxxxxx X. Xxxxxxxxxx to assert any claim
against Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxx,
SunRiver Group, Inc., or any other person or entity related to
the claims, items, issues, and asserted obligations set forth in
Exhibit F hereto (the "Xxxxxxxxxx Claims"), or (b) the right of
Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxx, SunRiver
Group, Inc., or any other person or entity to assert any claim
against Xxxxxxxxxx related to the Xxxxxxxxxx Claims or to Xxxxxx
X. Xxxxxxxxxx'x actions, omissions, conduct, activities,
decisions, or the performance of his alleged obligations and
duties as trustee on behalf of Xxxxxxx X. Xxxxx and/or Xxxxxxx
Xxxxx or as voting trustee under the one or more Voting Trust
Agreements entered among certain holders of the capital stock of
SunRiver Group, Inc.]
D. In accordance with the terms of the Indemnification
Agreement (hereinafter defined), insofar as it is applicable in a
particular instance, and all applicable statutes, the Company
agrees to pay the reasonable legal fees and expenses incurred by
Employee in connection with any litigation or other legal
proceeding in which Employee is a named defendant or witness and
which relates to any claim or claims from which Employee has been
released by the Company pursuant to paragraph B. of this Section
3. Moreover, Employee shall be entitled to select counsel to
represent Employee in connection with Employee's defense of any
such claim or claims, provided that such counsel selected by
Employee must be acceptable to the Company in its reasonable
discretion.
E. Company acknowledges that Employee is or
may be entitled to indemnification under the circumstances
contemplated by a certain Indemnification Agreement (herein so
called) dated as of September 3, 1996, between Employee and TWC
and/or SRC, that the Indemnification Agreement remains in
effect, and that nothing contained in this Agreement is
intended to modify Employee's rights under the Indemnification
Agreement; provided that Employee acknowledges and agrees that
the Indemnification Agreement is limited in application to the
services of Employee as a director and/or an officer of TWC
and/or SRC. A copy of the Indemnification Agreement to which
Employee is a party is attached to this Agreement as Exhibit
E. In the event of any conflict between this Agreement and
the Indemnification Agreement, the terms of the latter will be
controlling.
4. NO ADMISSION OF LIABILITY
This Agreement shall not in any way be construed
as an admission by the Company or others released herein
of any liability whatsoever, or as an admission by the Company or
others released herein that they have acted wrongfully with
respect to Employee, or any other person, or that Employee, or
any other person, has any rights whatsoever against the Company
or others released herein. The Company and others released
herein specifically disclaim any liability to or wrongful acts
against Employee, or any other person, on the part of
themselves, their partners, their officers, their employees,
their attorneys, or their agents. It is understood and agreed
that this Agreement is made by the Company and others
released herein purely to compromise any disputed claims,
avoid litigation, and obtain a resolution of any open issues
between the parties.
5. NO COMPLAINTS FILED
Employee represents that he has not heretofore filed any
charges or complaints against the Company with any federal,
state, or local governmental, judicial, or administrative
agencies. Employee further agrees that he will not file any
charges or complaints, or initiate any suit or action,
against the Company based on his employment with the Company
or the termination of such employment; provided, that nothing
contained in this Section 5 shall be deemed to prohibit any
charge or complaint filed by Employee after the Effective
Date for the purpose of enforcing the terms and conditions of
this Agreement, or the Indemnification Agreement, or of
asserting damages resulting from a breach of this Agreement or
the Indemnification Agreement by the Company.
6. CONFIDENTIALITY AND COMPETITION AND NON-DISPARAGEMENT
A. Employee acknowledges that he is bound by
certain confidentiality, noncompetition, nonsolicitation, and
similar covenants contained in the Employment Agreement.
Except as expressly set forth in paragraph B. of this Section
6, Employee hereby reaffirms each of such covenants and
agreements and hereby agrees to be bound by, adhere to, and
perform each of his obligations under each of such covenants
and agreements during the periods set forth in the Agreement.
B. The Employment Agreement sets forth certain
noncompetition covenants of Employee. As provided in paragraph
A. of this Section 6, Employee has reaffirmed such covenants;
however, the Company and Employee agree that, notwithstanding the
express language of the Employment Agreement, there shall be no
geographic limitation applicable to Employee's covenant of
noncompetition and the term Competing Business," as used in the
Employment Agreement hereafter shall mean (i) as to Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxx, and Xxxxx Xxxxxx, only the businesses
listed on Schedule I, and their respective successors and
assigns, and (ii) as to Xxx Xxxxx, only the businesses listed on
Schedule II, and their respective successors and assigns.
C. Employee and Company agree that each will not,
directly or indirectly, make any statement, oral or written, or
perform any act or omission which is or could be detrimental
in any material respect to the reputation or goodwill of each
other or of any Releasee or any consultant or attorney of
Employee released by the Company under paragraph B. of Section 3
of this Agreement.
[Note: The following bracketed language appears only in Xxxxxx
Xxxxxxxxxx'x agreement: Except, as to Employee and Company,
statements, acts, or omissions related to the matters set forth
in Exhibit F, are not subject to the provisions of this
paragraph.]
7. CERTAIN REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
As a material inducement to the Company to enter into this
Agreement, Employee hereby represents and warrants to the Company
as follows:
(i) Employee is not indebted to the Company for cash
advances (whether for expenses or other purposes) or
otherwise.
(ii) All proprietary information or data and other
property of the Company that was in the possession of
Employee has been delivered to the Company, and Employee has not
retained copies or duplicates of any such property that was
susceptible to being copied or duplicated (provided, that
Xxxxxx Xxxxxxxxxx shall have three days following the Effective
Date to deliver property of the Company that is in his
possession and located at his residence in Austin, Texas).
(iii) The Employment Agreement, the Stock Option
Agreement, and the Indemnification Agreement are the only
agreements between Employee and the Company, and Employee
claims no contractual rights with respect to the Company that
are not embodied in the Employment Agreement, the Stock Option
Agreement, and the Indemnification Agreement.
8. RIGHT TO ELECT CONTINUED COVERAGE
Employee acknowledges receipt of a Group Health
Benefits Right of Continuation Notice, if applicable, by which
he may elect, within 60 days following the Effective Date,
continued coverage under the Company's medical plan. The Company
agrees to pay for such continued medical benefits coverage for
Employee for a period of up to 18 months following the
Effective Date; however, the Company's obligation to continue
paying for such coverage will terminate immediately and
automatically at such time as Employee accepts employment
with a third party, and Employee agrees to give the Company
prompt written notice of his acceptance of any such employment.
9. ENFORCEMENT OF AGREEMENT
In the event Employee successfully brings suit to
enforce this Agreement, the Company agrees to pay to Employee an
amount equal to twice the amount of any unpaid Separation
Payments at the time of the resolution of such suit, plus
reasonable attorneys' fees and reasonable costs and expenses
related to such litigation, incurred by Employee in enforcing
the terms and conditions of this Agreement. Employee will be
deemed to have been successful in his claims if he
substantially prevails against the Company for any cause of
action asserted by Employee. The amounts set forth herein are
not intended as a penalty and are based on the uncertain nature
of litigation and the inherent inability to fully and accurately
assess damages which may result from any failure to comply with
the terms and conditions of this Agreement.
10. COOPERATION
A. During the period beginning on the Effective
Date, and ending on the earlier of (x) April 30, 1997 or (y) the
date on which the Company or Employee gives the other a
Consulting Cancellation Notice (hereinafter defined) (the
"Consulting Period"), Employee (i) will take all reasonable
steps to reasonably cooperate in the transfer of Employee's
duties to those persons designated by the Company and (ii) will
assist the Company in such manner, and at such time or times (on
a full-time or part-time basis), as may be requested by the
Company. During the Consulting Period, Employee agrees that he
will not begin permanent, fulltime employment with any person
or entity without the Company's consent (which will not be
unreasonably withheld). During the Consulting Period, Employee
will be compensated by the payment of consulting fees at
Employee's current salary level (but without bonus or any
other benefits) and the reimbursement of out-of-pocket expenses
approved by the Chairman of the Board or the President of
SRC (Xxxxx Xxxxxx will be entitled to reimbursement for his
living expenses on the same basis as in effect prior to the
Effective Date). The Company or Employee may terminate the
consulting arrangement contemplated by this paragraph and
thereby end the Consulting Period at any time after the
Effective Date by the delivery to the other of a written
notice of termination (a "Consulting Cancellation Notice"). Upon
the termination or expiration of the Consulting Period, whichever
occurs first, the Company will begin the payment to Employee of
Separation Payments in the manner provided on Exhibit D.
B. Employee further agrees that, without
subpoena, he will, at the Company's request and expense
(such expenses including, but not limited to, attorneys'
fees and expenses incurred by Employee), testify in any
judicial or administrative proceedings to which the Company is a
party with respect to any matter involving the affairs of the
Company of which he has knowledge.
11. NON-DISCLOSURE
Subject to the requirements of state and federal laws, each
of Employee, TWC, SRC, and BTI agrees that he or it will keep the
terms, amount, and fact of this Agreement confidential, and he or
it will not disclose any information concerning this Agreement to
any third person, including, but not limited to, any past or
present employees of TWC, SRC, and BTI, except as may be
required by law and for disclosure to the several banks that are
lenders to the Company.
12. OWNERSHIP OF CLAIMS
Employee represents that he has not heretofore assigned or
transferred, or purported to assign or transfer, to any person or
entity, any claim or claims released herein or any portion
thereof, or interest therein.
13. SUCCESSORS
This Agreement shall be binding upon Employee and
the Company and upon their respective heirs, administrators,
representatives, executors, successors, and assigns, and
shall inure to the benefit of the parties and others released
herein, and each of them, and to their respective heirs,
administrators, representatives, executors, successors, and
assigns.
14. GOVERNING LAW
THIS AGREEMENT SHALL IN ALL RESPECTS BE INTERPRETED,
ENFORCED AND GOVERNED UNDER THE LAWS OF THE STATE OF TEXAS.
15. VENUE; SERVICE OF PROCESS
Any litigation arising out of or in connection with
this Agreement, whether initiated by Employee or the Company,
shall be brought in the district courts of Xxxxxx County, Texas,
or in the United States District Court for the Western District
of Texas. Employee, for himself and his successors and assigns,
hereby (a) irrevocably submits to the nonexclusive jurisdiction
of the state and federal courts of the State of Texas and agrees
and consents that service of process may be made upon him in
any legal proceeding arising out of or in connection with this
Agreement by service of process as provided by Texas Law, (b)
irrevocably waives, to the fullest extent permitted by law,
any objection which he may now or hereafter have to the laying
of venue of any litigation arising out of or in connection with
this Agreement brought in the district courts of Xxxxxx County,
Texas, or in the United States District Court for the Western
District of Texas, Austin, Texas, (c) irrevocably waives any
claims that any litigation brought in any such court has
been brought in an inconvenient forum, (d) irrevocably
consents to the service of process out of any of the
aforementioned courts in any such litigation by the mailing
of copies thereof by certified mail, return receipt requested,
postage prepaid, to Employee at his address set forth herein,
and (e) irrevocably agrees that any legal proceeding against
the Company arising out of or in connection with this
Agreement shall be brought in the district courts of Xxxxxx
County, Texas, or in the United States District Court for the
Western District of Texas, Austin, Texas.
16. PROPER CONSTRUCTION
A. The language of all parts of this Agreement
shall in all cases be construed as a whole according to its
fair meaning, and not strictly for or against any of the parties.
B. The section headings used in this Agreement are
intended solely for convenience of reference and shall not in any
manner amplify, limit, modify, or otherwise be used in the
interpretation of any of the provisions hereof.
17. SEVERABILITY
The provisions of this Agreement are severable, and if any
part of it is found to be unenforceable, the other provisions
shall remain valid and enforceable.
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, with
the same effect as if all parties had signed the same document.
All such counterparts shall be deemed an original, shall be
construed together, and shall constitute one and the same
instrument.
19. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement between the parties
hereto, and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject
matter hereof, except for provisions of the Employment Agreement that
are intended to survive the termination of the Employment Agreement.
No amendment or modification of this Agreement shall be valid
unless in writing and signed by all parties, and approved by
resolution of the board of directors of SRC, TWC, or BTI, as the case
may be.
20. RIGHT TO CONSULT AN ATTORNEY AND PERIOD FOR
CONSIDERATION OF AGREEMENT
Employee is given a period of twenty-one days to review and
consider this Agreement before signing it. He may use as much of
this twenty-one day period as he wishes before signing and he is
encouraged to consult with an attorney before signing this
Agreement. Employee understands that whether or not to consult
with an attorney is his decision.
21. RIGHT TO REVOKE AGREEMENT
Employee may revoke this agreement within seven days after
signing it. Revocation can be made by delivering a written
notice of revocation to the Chairman of the Board of the Company.
For this revocation to be effective, written notice must be
received by the Chairman of the Board of the Company no later
than the close of business on the seventh day after Employee
signed this Agreement. If Employee revokes this Agreement, it
will not be effective or enforceable unless Employee
simultaneously tenders back to the Company any payments described
in Section 2 theretofore made to Employee.
22. FULL AND INDEPENDENT KNOWLEDGE
Employee represents and agrees that he is fully aware
of his right to discuss any and all aspects of this Agreement
with his attorney or with representatives of any federal, state,
or local agency, that he has been encouraged to do so, and
that he has availed himself of that right to the full extent,
if any, that he desired, that he has carefully read and fully
understands all of the provisions of this Agreement, and that
he is voluntarily entering into this Agreement.
23. NO RELEASE OF FUTURE CLAIMS
This Agreement does not waive or release any rights or
claims that Employee may have under the Age Discrimination in
Employment Act which are based upon acts or omissions that occur
after the date Employee signs this Agreement and are not
otherwise permitted or allowed by this Agreement.
24. EFFECTIVENESS OF AGREEMENT
Anything to the contrary contained in this Agreement to the
contrary notwithstanding, this Agreement will not become
effective or binding on the Company unless and until the Company
receives the Letter of Resignation and similar letters of
resignation, acceptable to the Company, from each of the
following individuals: (i) Xxxxxx Xxxxxxxxxx; (ii) Xxxxx Xxxxxx;
(iii) Xxxx Xxxxxxx; (iv) Xxx Xxxxx; (v) Xxx Xxxxx; and (vi) Xxx
Xxxxxxxx.
25. NOTICES AND RIGHT TO CURE
A. Any notice, communications, consent request, or demand
from one party to another must be in writing to be effective and
shall be deemed to have been given on the day actually delivered
personally or by facsimile, or if mailed, on the fourth business
day after it is enclosed in an envelope, addressed to the party
to be notified at the address indicated below, properly stamped,
sealed, and deposited in U.S. mail. Either party may change its
address or facsimile number for notices, at any time, by giving
the other party written notice of the new address and/or
facsimile number ten (10) days in advance of the date on which
the party changing said address desires same to be valid for the
purposes hereof. The address and facsimile number for each party
is as follows:
If to Employee:
As set forth on the signature page hereof.
If to Company:
c/o SunRiver Corporation
Attn.: President
Echelon IV, Suite 200
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000-0000 Facsimile/ (000) 0000000
B. Notice of Default
If any party to this Agreement asserts that another party
has breached or is breaching this Agreement, the non-breaching
party shall provide written notice of the alleged breach by the
fastest available communication to the breaching party.
Thereafter, the breaching party will have a period of three (3)
business days to cure the breach.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE
FOREGOING AGREEMENT, THAT I UNDERSTAND ALL OF ITS TERMS, AND
THAT I AM ENTERING INTO IT VOLUNTARILY.
I FURTHER ACKNOWLEDGE THAT I AM AWARE OF MY RIGHT TO REVIEW
AND CONSIDER THIS AGREEMENT AND TO CONSULT WITH AN ATTORNEY ABOUT
IT, AND STATE THAT BEFORE SIGNING THIS AGREEMENT, I EXERCISED
THESE RIGHTS TO THE FULL EXTENT THAT I DESIRED.
EMPLOYEE:
__________________________________
[ ]
Address for Notices:
__________________________________
__________________________________
__________________________________
__________________________________
Fax:_______________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned Notary Public, on this day
personally appeared [ ] ("Employee"),
known to me to be the person who executed the foregoing
instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
GIVEN under my hand and seal of office, this ____
day of ________________, 1996.
__________________________________
Notary Public
__________________________________
(Printed or Stamped Name of Notary)
My Commission Expires:____________
SUNRIVER CORPORATION
By:______________________________ Its:________________________
TRADEWAVE CORPORATION
By:______________________________ Its:________________________
BOUNDLESS TECHNOLOGIES, INC.
By:______________________________ Its:________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned Notary Public, on this day
personally appeared, ___________________ of SunRiver
Corporation, a Delaware corporation, known to me to be the
person who executed the foregoing instrument, and acknowledged
to me that he executed the same for the purposes and
consideration therein expressed, on behalf of said corporation.
GIVEN under my hand and seal of office, this ____ day of
________________, 1996.
__________________________________
Notary Public
____________________________________
(Printed or Stamped Name of Notary)
My Commission Expires:_____________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned Notary Public, on this day
personally appeared, ___________________ of TradeWave
Corporation, a Delaware corporation, known to me to be the
person who executed the foregoing instrument, and acknowledged
to me that he executed the same for the purposes and
consideration therein expressed, on behalf of said corporation.
GIVEN under my hand and seal of office, this ____ day of
________________, 1996.
__________________________________
Notary Public
__________________________________
(Printed or Stamped Name of Notary)
My Commission Expires:____________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned Notary Public, on this day
personally appeared, ___________________ of Boundless
Technologies, Inc., a Delaware corporation, known to me to be
the person who executed the foregoing instrument, and
acknowledged to me that he executed the same for the purposes
and consideration therein expressed, on behalf of said
corporation.
GIVEN under my hand and seal of office, this ____ day of
________________, 1996.
__________________________________
Notary Public
__________________________________
(Printed or Stamped Name of Notary)
My Commission Expires:____________
SCHEDULE I
NCR
WYSE
HDS
IDEA
Tektronix
Maxspeed
NCD
Oracle (Network Computer Division)
SunMicrosystems (Network Computer Division)
IBM (Network Computer Division)
Digital Equipment Corporation (Network Computer Division)
Sony (Network Computer Division)
Apple (Network Computer Division)
Microsoft (Network Computer Division)
SCHEDULE II
Netscape
Xxxx
Open Market
Connect
MEMCO
Security Dynamics
One Wave
Checkfree
Triteal
Oracle
Computer Associates
Sterling Corp.
Premenos
FTP Corp.
NetManage
Yahoo
Excite
Lycos
Infoseek
Magellan
Unibex
IBM (Global Network Division)
EXHIBIT A
EMPLOYMENT AGREEMENT
EXHIBIT B
SCHEDULE OF STOCK OPTIONS
SRC TRW
EXHIBIT C
LETTER OF RESIGNATION
EXHIBIT D
SEPARATION PAYMENTS
Separation payments payable to Employee, and the time(s)
such Separation Payments are due and payable, are as follows:
1. Salary, Vacation, Sick Leave, and Other
Regular Benefits.
A. Salary, vacation, sick leave, and other regular
benefits through the Effective Date, payable within
five business days after the Effective Date.
B. The sum of $[ ] (the "Total Sum") (less
applicable withholding) payable in 12 installments as
follows:
(i) An Initial Installment (herein so called) in the
amount which is 1/12th of the Total Sum (less applicable
withholding) payable within 10 business days following the
expiration or termination of the Consulting Period,
whichever occurs first; and
(ii) Eleven additional installments, each in the
amount which is 1/12th of the Total Sum (less
applicable withholding), on the 15th day of the calendar
month following the month in which the Initial
Installment is paid and on the 15th day of each calendar
month thereafter until the Total Sum has been paid in
full.
2. Expenses.
Reimbursement of all properly incurred and reimbursable
expenses of Employee incurred prior to the Effective
Date, payable within 30 days after submission of the
request for reimbursement.
EXHIBIT E
INDEMNIFICATION AGREEMENT
EXHIBIT F
(Note: This Exhibit F appears only in Xxxxxx Xxxxxxxxxx'x agreement.)
1. Xxxxxxxxxx'x alleged ownership of one million
shares (the "Preferred Shares") of the Series B Preferred
Stock of SunRiver Group, Inc. or Voting Trust Certificate(s)
representing the Preferred Shares and the voting of the Preferred
Shares.
2. The return to and recovery by Xxxxxxxxxx of copies of
any and all records of the Voting Trust created under that
certain Voting Trust Agreement effective January 27, 1993, as
amended by the Amended and Restated Voting
Trust Agreement effective April 24, 1995, and the originals of
any and all other records and documents previously removed by
Xxxxxxx x. Xxxxx from the files located in Xxxxxxxxxx'x home.
3. The payment by Xxxxxxxxxx of $69,000 in January 1995
to Venture First II L.P. for the account of Xxxxxx
Xxxxxxxxxx, Trustee, on behalf of Xxxxxxx X. Xxxxx and Xxxxxxx
X. Xxxxx in connection with the purchase theretofore made by
Xxxxxxxxxx, Trustee, of 1,500,000 shares of Series B Preferred
Stock of SunRiver Group, Inc.
4. The loan made in 1992 by Xxxxxxxxxx to Xxxxxxx X. Xxxxx
in the amount of $2,500 and the associated collateral or security
for the repayment of the loan.
5. Any and all stock option agreements and plans between
Xxxxxxxxxx and SunRiver Group, Inc. or its predecessors.
