Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 30th day of January, 2001, by
and between Xxxxxx Xxxxxx (the "Executive") and Onyx Software Corporation, a
Washington corporation (the "Corporation").
For ease of reference, this Agreement is divided into the following
parts, which begin on the pages indicated:
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND BENEFITS
DURING EMPLOYMENT
(Sections 1-12, beginning on page 2)
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF TERMINATION
(Sections 13-16, beginning on page 6)
THIRD PART: TRADE SECRETS, ASSIGNMENT OF INVENTIONS, SUCCESSORS,
MISCELLANEOUS PROVISIONS, SIGNATURE PAGE
(Sections 17-21, 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 the Executive's employment,
and the Executive agrees to remain in employment with the Corporation, from
January 30, 2001, until the earliest of:
(1) The date of the Executive's death; or
(2) The date when the Executive's employment terminates pursuant to
Subsection (b), (c), (d) or (e) below.
(b) Early Termination or Resignation. The Corporation may terminate the
Executive's employment at any time and for any reason, with or without
Cause, by giving the Executive written notice. The Executive may terminate
the Executive's employment for any reason by giving the Corporation not
less than 30 days' advance notice in writing. In the event of such
termination, Executive shall be entitled to the compensation and benefits
as detailed in the Second Part of this Agreement.
(c) Termination for Cause. The Corporation may terminate the Executive's
employment at any time for Cause shown. For all purposes under this
Agreement, "Cause" shall mean (1) a willful failure by the Executive 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 is materially
injurious 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 is materially and demonstrably injurious
to the Corporation.
(d) Termination for Disability. The Corporation may terminate the Executive's
employment for Disability by giving the Executive thirty (30) days advance
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.
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Section 2. Duties and Scope of Employment
(a) Position. The Corporation agrees to employ the Executive for the term of
employment under this Agreement in the position of President/Chief
Operating Officer. Executive shall be given such duties, responsibilities
and authorities as are appropriate to his position.
(b) Obligations. During the term of employment under this Agreement, the
Executive shall devote the Executive's full business efforts and time to
the business and affairs of the Corporation as needed to carry out his
duties and responsibilities hereunder subject to the overall supervision of
the Corporation's Chief Executive Officer. The foregoing shall not preclude
the Executive from engaging in appropriate civic, charitable or religious
activities or from devoting a reasonable amount of time to private
investments or from serving on the boards of directors of other entities,
as long as such activities and service do not interfere or conflict with
the Executive's responsibilities to the Corporation.
Section 3. Base Compensation
During the term of employment under this Agreement, the Corporation agrees to
pay the Executive as compensation for services a base salary at the annual rate
of $350,000 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. Executive's base salary shall be reviewed
at least once per calendar year. The annual compensation specified in this
Section 3, together with any adjustments 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, Executive will participate in the
Corporation's annual incentive compensation plan ("Leveraged Compensation
Plan"). Under the Leveraged Compensation Plan, Executive will be eligible for an
incentive bonus of up to seventy five percent (75%) of his Base Compensation
prorated to the first day of Executive's commencement of employment. The full
incentive bonus which Executive will be eligible to receive each year under the
Leveraged Compensation Plan, together with any adjustments to the full incentive
bonus amount that the Corporation may grant from time to time is referred to in
this Agreement as the "Target Incentive Bonus." Executive's actual leveraged
compensation for each year will be determined based upon the Corporation's
achievement of designated financial and business goals, as detailed in
Executive's compensation plan attached hereto as Schedule 1. By no later than
January 31 of each year, the Chief Executive Officer will designate, and provide
Executive with a written statement of, the Corporation's financial and business
goals for the year, in conjunction with annual recommendations by Executive
regarding revenue, earnings per share, and net profit margin objectives, and
other appropriate measures.
Section 5. Signing Bonus
(a) Signing Bonus. Executive shall receive a bonus (the "Signing Bonus") of two
hundred fifty thousand dollars ($250,000), payable within thirty (30) days
of the first day of
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Executive's commencement of employment. In the event that Executive is not
employed with the Corporation at the one (1) year anniversary of the first
day of Executive's commencement of employment, Executive shall be required
to repay to the Corporation twenty five percent (25%) of the Signing Bonus
for each three month period during the previous year in which Executive was
not so employed (or such pro-rated amount for any partial period). In the
event that Executive is not employed with the Corporation as a result of a
Qualifying Termination (as defined in Section 13 of this Agreement), no
such repayment shall be required.
(b) Stay-Put Bonus. Executive shall receive an additional bonus of two hundred
fifty thousand dollars ($250,000) at the one year anniversary of first day
of Executive's commencement of employment, provided that either (i)
Executive is employed with the Corporation at such time or (ii) Executive
is no longer employed with the Corporation as a result of a Qualifying
Termination.
Section 6. Stock Options
(a) Initial Grant. Subject to approval by the Corporation's Board of Directors,
the Executive shall receive an option to purchase six hundred thousand
(600,000) shares of the Corporation's common stock (the "Option") on
Executive's first day of commencement of employment (the "Grant Date"), at
an exercise price equal to the fair market value of the Corporation's
common stock on the Grant Date (fair market value to be calculated as
defined in the Corporation's 1998 Stock Incentive Compensation Plan). Such
option shall be consistent with the provisions set forth in the
Corporation's 1998 Stock Incentive Compensation Plan, and shall provide
that twenty five percent (25%) of the shares covered by the Option shall
vest on the one-year anniversary of the first day of Executive's employment
(the "Initiation Date"), and an additional 2.0833% shall vest at the end of
each month thereafter, with the result that 100% of the shares covered by
the Option are vested four years from the Initiation Date.
(b) Additional Grants. Subject to approval by the Corporation's Board of
Directors, the Executive shall receive three additional options, each such
option to purchase fifty thousand (50,000) shares of the Corporation's
common stock (the "Additional Options"), on Executive's first day of
commencement of employment (the "Grant Date"), at an exercise price equal
to the fair market value of the Corporation's common stock on the Grant
Date (fair market value to be calculated as defined in the Corporation's
1998 Stock Incentive Compensation Plan). Such Additional Options shall be
consistent with the provisions set forth in the Corporation's 1998 Stock
Incentive Compensation Plan, and shall provide that all of the shares
covered by each such Additional Option shall vest in their entirety on the
four-year anniversary of the first day of Executive's employment (the
"Initiation Date"). Notwithstanding the foregoing, each Additional Option
shall further provide for immediate acceleration of the entire fifty
thousand (50,000) shares in the event that Executive achieves the relevant
milestones as set forth in Schedule 2 to this Agreement.
(c) Future Grants. Executive shall receive additional annual option grants from
the Corporation unless his overall annual performance for the prior year
has been determined
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by the Chief Executive Officer to be unsatisfactory. Executive's annual
grant for the first two (2) future grants contemplated under this Section
6(c) shall be an option to purchase a minimum of fifty thousand (50,000)
shares. For future annual grants thereafter, Executive's annual grant shall
be a minimum of one hundred thousand (100,000) shares. Any such additional
grants shall be at an exercise price equal to the fair market value on the
date of such grant and shall vest 2.0833% each month thereafter, with the
result that 100% of any such option is vested in four (4) years. For the
avoidance of doubt, the one hundred thousand (100,000) share targeted
future options shall not be adjusted for future stock splits or similar
changes in capitalization.
(d) Stock Option Agreement. The options granted to Executive pursuant to this
Agreement shall be subject to the Corporation's standard form of stock
option agreement, as necessarily modified in each case by the Corporation
to reflect the applicable terms of this Agreement regarding such options
and to result in no material alterations or additions adverse to
Executive's rights under this Agreement regarding such options.
Section 7. Executive Benefits
During the term of employment under this Agreement, the Executive shall be
eligible to participate in the Executive benefit plans and executive
compensation programs maintained by the Corporation, 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.
Section 8. Relocation
Executive shall be entitled to reimbursement from the Corporation for his
relocation expenses in accordance with the Corporation's executive relocation
program attached hereto as Schedule 3.
Section 9. Life Insurance
Within thirty (30) days of the commencement of Executive's first day of
employment, the Corporation shall purchase for Executive two life insurance
policies. The first policy shall be for the Executive with policy limit of
$9,000,000 and the second policy shall be on the Executive's wife with a policy
limit of $1,000,000.
Section 10. Legal Expenses
Provided that Executive commences employment with the Corporation, the
Corporation shall reimburse Executive for up to ten thousand dollars ($10,000)
in documented legal expenses incurred by Executive in association with this
Agreement.
Section 11. Housing Equalization
In the event that (i) Executive's employment terminates as a result of a
Qualifying Termination and (ii) the amount for which Executive sells his primary
residence at such time is less than the
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amount executive originally paid for such residence, the Corporation shall
reimburse Executive for up to one hundred thousand dollars ($100,000) of such
differential.
Section 12. Business Expenses and Travel
During the term of employment under this Agreement, the Executive shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with the Executive's duties hereunder. The
Corporation shall reimburse the Executive for such expenses upon presentation of
an itemized account and appropriate supporting documentation, all in accordance
with generally applicable policies.
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SECOND PART: COMPENSATION AND BENEFITS IN CASE OF TERMINATION
Section 13. 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,
after executing the release of claims described in Section 13(e), the Executive
shall be entitled to receive the payments and benefits described in Subsections
(b) (c) and (d).
(a) Qualifying Termination. A Qualifying Termination occurs if:
(1) The Corporation terminates the Executive's employment for any reason
other than Cause or Disability; or
(2) The Executive separates from employment with the Corporation within
ninety (90) days following a "Constructive Termination". "Constructive
Termination" is defined as the occurrence of any of the following: (a)
a reduction in Executive's Base Salary or Targeted Incentive Bonus;
(b) a material reduction or material adverse change in Executive's
title, position, authority, duties, or responsibilities (including
reporting responsibilities); or (c) the requirement that Executive
relocate more than thirty-five (35) miles from his then-current office
location.
(b) Severance. The Corporation shall pay to the Executive following the date of
the employment termination and over the succeeding twelve (12) months, in
accordance with standard payroll procedures, or, in Corporation's sole
discretion, in one lump sum, an amount equal to the following:
(1) One hundred percent (100%) (i.e. twelve months) of the Executive's
Base Compensation in effect on the date of the employment termination;
plus
(2) One hundred percent (100%) (i.e. twelve months) of the Executive's
Target Incentive Bonus; plus
(3) All earned, but unpaid, bonuses owed to Executive as of the date of
the termination.
(c) One (1) Year of Life Insurance and Health Plan Coverage. The coverage
described in this Subsection (c) shall be provided for a "Continuation
Period" beginning on the date when the employment termination is effective
and ending on the earlier of (1) the one year anniversary of the date when
the employment termination is effective or (2) the date of the Executive's
death. During the Continuation Period, the Executive (and, where
applicable, the Executive's dependents) shall be entitled to continue
participation in the group term life insurance plan and in the health care
plan for Executives maintained by the Corporation as if the Executive were
still an Executive of the Corporation. The coverage provided under this
Subsection (c) shall run concurrently with and shall be offset against any
continuation coverage under Part 6 of Title I of the Employee
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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.
(d) Acceleration of Vesting. As of the effective date of termination, the
Corporation will accelerate the vesting of all stock options held by
Executive that would have vested during the one (1) year period following
the effective date of such termination.
(e) Release of Claims. As a condition to the receipt of the payments and
benefits described in this Section 13, the Executive shall be required to
execute a release 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
indemnification from the Corporation under any indemnification agreement
with the Corporation, its certificate of incorporation and by-laws or
applicable law or claims for directors and officers' insurance coverage.
(f) Conditions to Receipt of Payments and Benefits. In view of Executive's
position and his access to Confidential Information, as defined below, and
as a condition to the receipt of payments and benefits described in this
Section 13, the Executive shall not, for a period of one (1) year, without
the Corporation's prior written consent, directly or indirectly, alone or
as a partner, joint venturer, officer, director, Executive, consultant,
agent or stockholder (other than a less than 5% stockholder of a publicly
traded company) (i) engage in any activity which is reasonably considered
to be in competition with the core business, the products or services of
the Corporation, (ii) solicit any of the Corporation's employees,
consultants or customers, (iii) hire any of the Corporation's employees or
consultants in an unlawful manner or actively encourage employees or
consultants to leave the Corporation, or (iv) otherwise breach his
Confidential Information obligations.
(g) No Mitigation. The Executive shall not be required to mitigate the amount
of any payment or benefit contemplated by this Section 13, nor shall any
such payment or benefit be reduced by any earnings or benefits that the
Executive may receive from any other source.
Section 14. Termination Resulting from a Change in Control
In the event of a Qualifying Termination occurring at any time within two (2)
years after a change in control of the Corporation (a "Corporate Transaction"
pursuant to Section 2.6 of the 1998 Stock Incentive Compensation Plan), the
following shall occur: (i) Executive shall receive the benefits enumerated in
Subsection 13 (b) above, however such benefits shall be paid for an eighteen
(18) month period in lieu of the twelve (12) month period contemplated
thereunder, (ii) Executive shall receive the benefits enumerated in Subsection
13 (c) above and (iii) Executive's stock options shall accelerate and fully vest
as of the date of the Qualifying Termination. The
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foregoing benefits contemplated in this Subsection 14 shall be subject to the
conditions of Subsections 13 (e), 13 (f) and 13 (g) above.
Section 15. Vesting Acceleration Resulting from a Change in Control
In the event of a change in control of the Corporation (a "Corporate
Transaction" pursuant to Section 2.6 of the 1998 Stock Incentive Compensation
Plan), the Corporation will accelerate the vesting of all stock options held by
Executive that would have vested during the six (6) month period following the
effective date of such Corporate Transaction.
Section 16. Other Terminations Under This Part
If termination of employment, actual or constructive, is not described in
Section 13, 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 16 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 13(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 13).
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THIRD PART: TRADE SECRETS, ASSIGNMENT OF INVENTIONS SUCCESSORS, MISCELLANEOUS
PROVISIONS, SIGNATURE PAGE
Section 17. Confidential Information
(a) Acknowledgement. The Corporation and the Executive acknowledge that the
services to be performed by the Executive under this Agreement are unique
and extraordinary and that, as a result of the Executive's employment, the
Executive will be in a relationship of confidence and trust with the
Corporation and will come into possession of "Confidential Information" (1)
owned or controlled by the Corporation, (2) in the possession of the
Corporation and belonging to third parties or (3) conceived, originated,
discovered or developed, in whole or in part, by the Executive. As used
herein "Confidential Information" includes trade secrets and other
confidential or proprietary business, technical, personnel or financial
information, whether or not the Executive's work product, in written,
graphic, oral or other tangible or intangible forms, including but not
limited to specifications, samples, records, data, computer programs,
drawings, diagrams, models, customer names, ID's or e-mail addresses,
business or marketing plans, studies, analyses, projections and reports,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under
their direction (including attorney work product), and software systems and
processes. Any information that is not readily available to the public
shall be considered to be a trade secret and confidential and proprietary,
even if it is not specifically marked as such, unless the Corporation
advises the Executive otherwise in writing.
(b) Nondisclosure. The Executive agrees that the Executive will not, without
the prior written consent of the Corporation, directly or indirectly use or
disclose Confidential Information to any person, during or after the
Executive's employment, except as may be necessary in the ordinary course
of performing the Executive's duties under this Agreement. The Executive
will keep the Confidential Information in strictest confidence and trust.
This Section 17 shall apply indefinitely, both during and after the term of
this Agreement.
(c) Surrender Upon Termination. The Executive agrees that in the event of the
termination of the Executive's employment for any reason, the Executive
will immediately deliver to the Corporation all property belonging to the
Corporation, including all documents and materials of any nature pertaining
to the Executive's work with the Corporation, and will not take with the
Executive any documents or materials of any description, or any
reproduction thereof of any description, containing or pertaining to any
Confidential Information. It is understood that the Executive is free to
use information that is in the public domain (not as a result of a breach
of this Agreement).
Section 18. Inventions and Creations Belong to the Corporation
Any and all inventions, discoveries, improvements, or creations (collectively
"Creations") which the Executive has conceived or made or may conceive or make
during the period of employment under this Agreement in any way, directly or
indirectly, connected with the Corporation's
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business shall be the sole and exclusive property of the Corporation. The
Executive agrees that all copyrightable works created by the Executive or under
the Corporation's direction in connection with the Corporation's business are
"works made for hire" and shall be the sole and complete property of the
Corporation and that any and all copyrights to such works shall belong to the
Corporation. To the extent such works are not deemed to be "works made for
hire," the Executive hereby assigns all proprietary rights, including copyright,
in these works to the Corporation without further compensation.
The Executive further agrees to (i) disclose promptly to the Corporation all
such Creations which the Executive has made or may make solely, jointly, or
commonly with others, (ii) assign all such Creations to the Corporation, and
(iii) execute and sign any and all applications, assignments, or other
instruments which the Corporation may deem necessary in order to enable it, at
its expense, to apply for, prosecute, and obtain copyrights, patents or other
proprietary rights in the United States and foreign countries or in order to
transfer to the Corporation all right, title, and interest in said Creations.
Section 19. NOTICE REQUIRED BY REVISED CODE OF WASHINGTON 49.44.140
Any assignment of Inventions required by this Agreement does not apply to an
Invention for which no equipment, supplies, facilities or trade secret
information of the Company was used and which was developed entirely on the
employee's own time, unless (a) the Invention relates (i) directly to the
business of the Company or (ii) to the Company's actual or demonstrably
anticipated research or development, or (b) the Invention results from any work
performed by the employee for the Company.
Section 20. 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.
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Section 21. Miscellaneous Provisions
(a) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and by an authorized officer of the
Corporation (other than the Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another
time.
(b) Whole Agreement. No agreements, representations or understandings (whether
oral or written and whether express or implied) that are not expressly set
forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. In addition, the Executive hereby
acknowledges and agrees that this Agreement supersedes in its entirety any
employment agreement between the Executive and the Corporation in effect
immediately prior to the effective date of this Agreement. As of the
effective date of this Agreement, such employment agreement shall terminate
without any further obligation by either party thereto, and the Executive
hereby relinquishes any further rights that the Executive may have had
under such prior employment agreement.
(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
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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) Authorized Officer. The Corporation represents and warrants that the
officer executing this Agreement on its behalf is duly authorized to do so.
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/ Xxxxxx X. Xxxxxx
-------------------------------------
Executive
ONYX SOFTWARE CORPORATION
By: /s/ Xxxx Xxxxxxx-Xxxx
----------------------------------
Xxxx Xxxxxxx-Xxxx
Its: Vice-President, Human Resources
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Schedule 1
Leveraged Compensation Program Accelerators
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Attainment Range
Minimum Maximum Adjustment
0% 80% 0%
80% 110% 80 - 110% Linear
(greater than)110% 140% 120%
(greater than)140% (greater than)up 150%
Minimum of 100% attainment must be met for booked revenue and net profit margin
prior to receiving an adjustment greater than 100%
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Schedule 2
Milestones for Stock Acceleration
As contemplated in Section 6(b) of this Agreement, each of the three option
grants detailed therein shall be accelerated so as to vest 100% immediately upon
achievement of the relevant metric detailed below.
1. The first additional option grant of 50,000 shares shall immediately vest
and become exercisable at the six month anniversary of the first day of
employment of the latter of the following two General Mangers to be hired:
(i) General Manager for Asia/Pacific and (ii) General Manger for Europe.
2. The second additional option grant of 50,000 shares shall immediately vest
and become exercisable at such time as the Corporation has adopted a
corporate realignment plan, such planning process to be led by the
Executive. Such realignment shall include a reorganization of the
Corporation into individual profit and loss statements for each of the
Corporation's key geographies as well as defining clear reporting
structures for each geography.
3. The final additional option grant of 50,000 shares shall immediately vest
and become exercisable at such time as the Corporation's stock price trades
for a period of thirty (30) consecutive days at an average price greater
than or equal to $30.00 per share. Average price is defined as the average
high and low per share sales price of the Corporation's common stock as
reported by the Nasdaq National Market.
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Schedule 3
Onyx Executive Relocation Program
The following summary is provided of your relocation package. Any excess
weight, special charges or storage should be authorized by the Human Resources
Department.
Benefit Executive
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Relocation Allowance - Incidentals $10,000
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House Hunting Trip Up to 7 days
# of trips 2
Lodging 7 Nights
Meals 7 Days
Airfare Employee & Spouse
Car Rental 7 days
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Home Finding Assistance Yes
Pre-move Counseling
Cost of Living Analysis
Relocation Package
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Rental Assistance Yes
Market Research
4 hour tour
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Expense Tracking Yes
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Tax Filing Assistance Yes - Singapore and United States for 2001
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Work Permit Yes
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Temporary Living Up to 120 days in Singapore
Rental Car Up to 30 days or until owner car arrives
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Shipment of Household Goods Full Pack/Unpack
Weight Full Weight
Storage 45 days
Insurance Up to $250,000
Shipment of Auto N/A
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Home Selling Assistance N/A
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Closing Cost Assistance Closing Costs to include mortgage points and
associated normal legal fees
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16
