Exhibit 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of the 19th day of February, 2004, by and between Xxxxx X. Xxxx (the
"Executive") and Onyx Software Corporation, a Washington corporation (the
"Corporation").
Executive is currently employed by the Corporation as the
Corporation's Chairman of the Board and Chief Executive Officer.
Executive and the Corporation desire to set forth the terms of
Executive's continued employment on the terms and conditions provided herein.
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 - 8, beginning on page 2)
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF TERMINATION
(Sections 9 - 11 beginning on page 5)
THIRD PART: TRADE SECRETS, ASSIGNMENT OF INVENTIONS, SUCCESSORS,
MISCELLANEOUS PROVISIONS, SIGNATURE PAGE
(Sections 12 - 13 beginning on page 9)
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND
BENEFITS DURING EMPLOYMENT
SECTION 1. TERM OF EMPLOYMENT
(a) Basic Rule. The Corporation agrees to continue to employ the Executive
and the Executive agrees to continue to remain in employment with the
Corporation as the Corporation's Chief Executive Officer (or in another
Qualified Position (as defined below)) 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;
provided, however, that the Corporation's Board of Directors (the
"Board") may excuse the Executive from any or all of his duties during
this period. Subject to Section 9(e), the Executive may terminate the
Executive's employment for any reason by giving the Corporation not
less than 30 days' advance written notice. In the event of such
termination, Executive shall be entitled to compensation and benefits
on the terms and subject to the conditions detailed in the Second Part
of this Agreement.
(c) Termination for Cause. The Corporation may terminate the Executive's
employment at any time (without prior notice) for Cause shown. For all
purposes under this Agreement, "Cause" shall mean (1) a willful and
continued failure, after written 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 (other than
Executive) 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.
-2-
(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 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 continue to employ the Executive
for the term of employment under this Agreement in the position of
Chief Executive Officer or in another Qualified Position. Unless
Executive accepts another Qualified Position with different duties and
reporting responsibilities, as provided in Section 9(a), the Executive
shall be the Corporation's highest ranking officer and shall report
directly to the Board. 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 continue to 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 Board. 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
continue to pay the Executive as compensation for services a base salary at the
annual rate of $250,000 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. Beginning in January 2005,
the Executive's base salary shall be reviewed annually and increased, to the
extent appropriate, based upon the Executive's performance and the Corporation's
ability to fund a pay review program. 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 continue to participate
each year in the Corporation's annual incentive compensation plan ("Leveraged
Compensation Plan"). It is
-3-
acknowledged that Executive's participation under the Leveraged Compensation
Plan for 2003, his 2003 target incentive bonus and the financial and business
goals underlying the payment of such target incentive bonus were established in
the first quarter of 2003 and that, based on the Company's failure to achieve
such financial and business goals, Executive shall not receive any incentive
bonus under the Leveraged Compensation Plan for 2003. For 2004, under the
Leveraged Compensation Plan, the Executive will be eligible to receive a target
incentive bonus of sixty-five percent (65%) of his Base Compensation. The
Executive's actual leveraged compensation will be determined based upon the
Corporation's achievement of designated financial and business goals which are
believed to 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, beginning with 2004.
SECTION 5. STOCK OPTIONS
Executive shall be eligible for additional option grants as may be provided by
the Compensation Committee of the Board from time to time (taking into account
Executive's substantial equity ownership position in the Corporation).
SECTION 6. 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 7. LEGAL EXPENSES
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 8. 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.
-4-
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF TERMINATION
SECTION 9. 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 latest of the following dates: (i) the effective date of the
Release and Waiver of Claims described in Section 9(e) (the "Release"), (ii) the
expiration of the 90-day Transition Period (as defined below) described in
Section 9(e) or (iii) the execution by Executive of any requested Consulting
Agreement (as defined below) (such latest date, the "Trigger Date"), 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 notifies the Corporation in writing that he will
terminate his employment with the Corporation in response to,
and no later than 30 days after the effective date of, 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;
provided, however, that no Qualifying Termination shall be deemed to occur under
clauses (1) or (2) above if the Corporation offers Executive another
executive-level position with the Corporation reporting to the Board or the
Chief Executive Officer of the Corporation and at the same salary and having the
same benefits provided in this Agreement (a "Qualified Position") and Executive,
in his sole discretion, agrees to accept such Qualified Position, in which case
Executive's employment in such Qualified Position shall continue under this
Agreement.
(b) Severance. In the event of a Qualifying Termination, the Corporation
shall pay to the Executive as severance, subject to and conditioned
upon the execution by Executive of the Release, the following amounts
on the following terms:
(1) an amount equal to the product of Executive's monthly Base
Compensation in effect on the date of the employment
termination, multiplied by twelve months from the date of the
employment termination (the "Severance Term"), payable
semi-monthly over the Severance Term in accordance with the
Corporation's standard payroll procedures; plus
(2) an amount equal to 100% of the Executive's target incentive
bonus in effect for the fiscal year in which Executive's
employment is terminated (regardless of whether the underlying
targets are actually achieved), payable semi-monthly over
-5-
the Severance Term in accordance with the Corporation's
standard payroll procedures; plus
(3) Any earned, but unpaid, bonus owed to Executive for a
completed six-month bonus period as of the date of the
termination, which bonus has been or will be determined by the
Board in accordance with the Leveraged Compensation Plan, and
shall be payable in one lump sum no later than ten (10) days
after the Trigger Date.
(c) Life Insurance and Health Plan Coverage. Beginning on the date when the
employment termination is effective and ending at the earlier of (1)
the expiration of the Severance Term or (2) the date of the Executive's
death, Executive (and, where applicable, the Executive's dependents)
shall be entitled to continue participation at the Company's expense in
(a) the group term life insurance plan and (b) in the health care plan
for Executives maintained by the Corporation, through COBRA, with
coverage the same 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 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. The Corporation will also provide and pay for
Group Term Insurance conversion under the Corporation's Group Term Life
Plan for the Severance Term. In the event that Executive secures
employment during the Severance Term, Executive shall make reasonably
diligence efforts to secure replacement insurance provided by such
subsequent employment and will notify the Corporation promptly of the
effective date of such coverage. On such effective date or at the end
of the Severance Term, the Corporation will no longer be required to
pay COBRA premiums to provide health care coverage for Executive or,
where applicable, his dependents. At the end of the Severance Term,
Executive may take over COBRA payments for any remaining COBRA period,
provided that Executive is not yet covered by another healthcare plan.
(d) Vesting and Exerciseability of Stock Options. As of the effective date
of termination, all stock options not previously vested will vest and
remain exercisable to the extent provided in, and in accordance with,
the applicable stock option letter agreement between the Corporation
and the Executive.
(e) Conditions to Receipt of Payments and Benefits. As a condition to the
receipt of the payments and benefits described in this Section 9, the
Executive shall be required to (i) 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
-6-
certificate of incorporation and by-laws or applicable law or claims
for directors and officers' insurance coverage, (ii) at the request of
the Corporation, continue in the employment of the Corporation for a
period of not less than 90 days following notice of termination (the
"Transition Period"), and cooperate in good faith during such period to
assist the Corporation to transition his duties and responsibilities to
his replacement and (iii) at the request of the Corporation, execute a
Consulting Agreement under which Executive will agree, for a period up
to the Severance Term, to provide not more than 5 hours per week of
consulting services to the Corporation, the consideration for which
shall be a specified portion of the payments and benefits described in
this Section 9.
(f) Noncompetition, Nonsolicitation and Nondisparagement. In view of the
Executive's position and his access to Confidential Information, as
defined below, the Executive agrees by accepting this Agreement that,
the Executive shall not, during Executive's employment with the
Corporation and for a period of (A) twelve (12) months after any
termination thereof in the case of clauses (i) and (ii) below and (B)
twenty-four (24) months after any termination thereof in the case of
clauses (iii)-(viii) below, without the Corporation's prior written
consent, directly or indirectly, alone or as a partner, joint venturer,
officer, director, employee, 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) directly or indirectly
solicit or hire any of the Corporation's employees or consultants,
(iii) hire any of the Corporation's employees or consultants if
Executive is engaged in any activity which is in competition with the
business, the products or services of the Corporation, (iv) directly or
indirectly solicit any of the Corporation's employees or consultants on
behalf of any business or entity that is competitive with the business,
products or services of the Corporation, (v) directly or indirectly
solicit any customers of the Corporation on behalf of any business or
entity that is competitive with the business, products or services of
the Corporation, (vi) actively encourage employees or consultants to
leave the Corporation, (vii) make any negative or derogatory comment to
any third party, including current employees, consultants, customers
and prospects of the Corporation and the press, regarding the
Corporation, its business or related activities, or the relationship
between the Corporation and Executive or (viii) 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 9, nor
shall any such payment or benefit be reduced by any earnings or
benefits that the Executive may receive from any other source.
-7-
SECTION 10. 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 Severance Term shall be equal to eighteen months.
SECTION 11. OTHER TERMINATIONS UNDER THIS PART
If termination of employment, actual or constructive, is not described in
Section 9, 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 11 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
9(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 9).
-8-
THIRD PART: TRADE SECRETS, ASSIGNMENT OF INVENTIONS SUCCESSORS,
MISCELLANEOUS PROVISIONS, SIGNATURE PAGE
SECTION 12. EMPLOYEE CONFIDENTIALITY AND INVENTION AGREEMENT
Executive acknowledges and reaffirms his agreements regarding nondisclosure and
confidentiality of the Corporation's confidential information and regarding the
ownership of the Corporation's inventions contained in that certain Onyx
Software Corporation Employee Confidentiality and Invention Agreement dated May
12, 1994 (the "Confidentiality Agreement"). Executive acknowledges and agrees
that such agreement shall survive indefinitely any termination of Executive's
employment with the Corporation, however caused.
SECTION 13. 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 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 14. 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, any stock option letter
agreement between the Corporation and Executive or the
-9-
Confidentiality 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.
(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
-10-
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 Section 9(f) of this Agreement or in the
Confidentiality 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.
-11-
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 XXXX
------------------------------
Executive
ONYX SOFTWARE CORPORATION
By: /s/ XXXXXXX X. XXXXXX
------------------------------
------------------------------
Its: Member, Board of Directors
-12-
EXHIBIT A
GENERAL RELEASE
XXXXX X. XXXX (hereinafter referred to as "RELEASOR"), in
accordance with the terms of the Employment Agreement ("Agreement") by and
between the parties and in consideration of the promises by Onyx SOFTWARE
CORPORATION (hereinafter "Onyx") set forth in the Agreement and other good and
valuable consideration to be paid by Onyx as further prescribed by said
Agreement, hereby releases and forever discharges Onyx, its officers, agents,
representatives and employees, (hereinafter referred to as "RELEASEES"), from
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, bonuses,
controversies, agreements, promises, claims, charges, complaints and demands
whatsoever, whether in law or equity, against the RELEASEES, which the RELEASOR
and the RELEASOR'S heirs, executors, administrators, successors, and assigns,
may now have or hereafter can have, shall have, may have, or may have had for,
upon, or by reason of any cause or thing whatsoever including, but not limited
to, claims arising under the Americans With Disabilities Act, the National Labor
Relations Act, the Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974, 29 U.S.C. Section 1001 et seq., as amended ("ERISA"),
including, but not limited to, breach of fiduciary duty and equitable claims to
be brought under Section 1132(a)(3), Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, the Vocational Rehabilitation Act of
1973, the Civil Rights Acts of 1866, 1871 and 1991, including Section 1981 of
the Civil Rights Act, the Family Medical Leave Act, the Washington Law Against
Discrimination, and/or any other federal, state or local human rights, civil
rights, wage-hour, pension or labor law, rule, statute, regulation, constitution
or ordinance and/or public policy, contract or tort law, or any claim of
retaliation under such laws, or any claim of breach of any contract (whether
express, oral, written or implied from any source), or any claim of intentional
or negligent infliction of emotional distress, tortious interference with
contractual relations, wrongful or abusive discharge, defamation, prima facie
tort, fraud, negligence, loss of consortium, or any action similar thereto
against RELEASEES, including any claim for attorneys' fees, based upon any
conduct from the beginning of the world up to and including the date of this
General Release; provided, however, that RELEASOR does not waive any right to
file an administrative charge with the Equal Employment Opportunity Commission
(EEOC) (subject to the restriction that if any such charge is filed, RELEASOR
agrees not to violate the confidentiality provisions of the Agreement or to seek
or in any way obtain or accept any award, recovery, settlement or individual
relief therefrom); and provided further, however, that RELEASOR does not release
any claim of breach of the terms of the Employment Settlement Agreement between
RELEASOR and RELEASEES; and provided further, however, that RELEASOR does not
waive any rights or release Onyx from payments of any and all benefits and/or
monies earned, accrued, vested or otherwise owing, if any, to RELEASOR under the
terms of Onyx's retirement, savings, deferred compensation and/or profit sharing
plan(s); and provided further, however, that RELEASOR does not release any
claims for indemnification from Onyx under any indemnification agreement with
Onyx, its articles of incorporation and by-laws or applicable law or claims for
directors and officers' insurance coverage.
Thus, for the purpose of implementing a full and complete
release and discharge of the RELEASEES, RELEASOR expressly acknowledges that
this General Release is intended
to include in its effect, without limitation, all claims which RELEASOR does not
know or suspects to exist in RELEASOR'S favor at the time of execution hereof,
and that this General Release contemplates the extinguishment of any such claim
or claims; provided, however, that RELEASOR does not hereby release any claims
concerning the enforceability of this General Release (including the Agreement)
or arising from the breach of the terms of this General Release (including the
Agreement).
RELEASOR further releases RELEASEES from any and all liability
for their refusal or failure to employ or hire him at any time in the future,
and agrees that he shall not seek and hereby waives any claim for employment,
reinstatement or re-employment with RELEASEES at any time in the future and
RELEASOR further agrees that this General Release shall be a complete bar to any
such application or employment.
RELEASOR further acknowledges and agrees that in the event any
charge, complaint, action or proceeding was or is filed on behalf of RELEASOR in
any agency, court or other forum against RELEASEES based on any conduct from the
beginning of the world up to and including the date of this General Release,
RELEASOR will not accept any individual relief therefrom.
RELEASOR further acknowledges and agrees that if any of the
provisions, terms, clauses, waivers and releases of claims and rights contained
in this General Release are declared illegal, unenforceable, or ineffective in a
legal forum of competent jurisdiction, such provisions, terms, clauses, waivers
and releases of claims or rights shall be modified, if possible, in order to
achieve, to the extent possible, the intentions of the parties, and, if
necessary, such provisions, terms, clauses, waivers and releases of claims and
rights shall be deemed severable, such that all other provisions, terms,
clauses, waivers and releases of claims and rights contained in this General
Release shall remain valid and binding upon both parties; provided, however,
that, notwithstanding any other provision of this General Release, if any
portion of the waiver or release of claims or rights is held to be
unenforceable, Onyx, at its option, may seek modification or severance of such
portion or consider the General Release null and void.
This General Release may not be altered, amended, modified,
superseded, canceled or terminated except by an express written agreement duly
executed by all of the parties hereto or their attorneys on their behalf, which
agreement makes specific reference to the Agreement. This General Release will
be governed by the laws of the State of Washington.
[RELEASOR understands that seven (7) days after the date of
execution of this Release (including the Agreement), this General Release
(including the Agreement) become effective and, as of that date, he may not
change his decision or seek any other remuneration in any form; provided,
however, that he has a seven (7) day revocation period (beginning on the date of
execution). If RELEASOR intends to revoke this General Release (including the
Agreement) he must advise counsel for Onyx on or before the expiration of this
seven (7) day revocation period by hand delivering to [INSERT DESIGNEE], written
notification of his intention to revoke the Agreement or General Release, which
written notification makes specific reference to this General Release (including
the Agreement).][INSERT PARAGRAPH ONLY IF RELEASOR IS OVER 40 AT TIME OF
EXECUTION.]
-2-
RELEASOR by signing this General Release (including the Agreement)
acknowledges that he has had a full and fair opportunity [(at least 21
days)][INSERT BRACKETED LANGUAGE IF RELEASOR IS OVER 40 AT TIME OF EXECUTION] to
review, consider and negotiate the terms of this General Release (including the
Agreement), that he has been advised to seek and has had the opportunity to seek
the advice of an attorney at the cost of Onyx in connection with his decision
whether to accept the benefits that have been offered to him under this General
Release (including the Agreement), and has reviewed this General Release
(including the Agreement) with advisors of his choice, that he has read and
understands this General Release (including the Agreement), and that he has
signed this General Release (including the Agreement) freely and voluntarily,
without duress, coercion or undue influence and with full and free understanding
of its terms.
IN WITNESS WHEREOF, RELEASOR has hereunto set his hand and seal
below.
-----------------------------------------
XXXXX X. XXXX
State of Washington )
) ss.:
County of Kings )
On this ___ day of ___________ 200_, before me personally came XXXXX
X. XXXX, known to me to be the individual described herein, and who executed the
foregoing Agreement and General Release.
------------------------------------
Notary Public
-3-
