Exhibit 10(b)
GENERAL RELEASE AGREEMENT
THIS GENERAL RELEASE AGREEMENT (this "Agreement") is made
and entered into as of November 1, 1996 ( the "Effective Date"),
by and among [ ], ("[ ]"), 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, [ ] serves as a member of the Board of
Directors of both SRC and TWC; and
WHEREAS, SRC and [ ] have entered into a certain
Stock Option Agreement (Incentive Stock Option) dated as of April
23, 1996 (the "Stock Option Agreement"), a copy of which is
attached hereto as Exhibit A, pursuant to which SRC has granted
options to [ ] (the "Options") to purchase an aggregate of
[ ] shares of the common stock, ("Common Stock"), upon the
terms and subject to the conditions contained in the Stock Option
Agreement; and
WHEREAS, [ ] and SRC (expressly including SRC, as the
grantor of the Options to [ ] pursuant to the Stock Option
Agreement) desire to accelerate the vesting of the Options as to
[ ] shares of the Common Stock, to provide for the exercise of
the Options as to such shares during the three-year period
following the Effective Date; and
WHEREAS, [ ] 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 [ ]'s
service as director of SRC and TWC or his resignation as
director;
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. VOLUNTARY RESIGNATION
[ ], concurrently with the Effective Date of this
Agreement, shall voluntarily resign as a director of SRC and TWC
by the delivery to the Company of a letter of resignation in the
form of Exhibit B attached to this Agreement (the "Letter of
Resignation"), and shall thereafter be relieved of all day-to-day
duties and responsibilities as a director of SRC and TWC.
2. CONSIDERATION FROM THE COMPANY; CERTAIN AGREEMENTS OF
THE COMPANY
A. Upon [ ]'s execution of this Agreement
and submission of the Letter of Resignation as provided in
Section 1, the Company (expressly including SRC, as the
grantor of the Options to [ ]
pursuant to the Stock Option Agreement)hereby agrees to
accelerate the vesting of the Options as to [ ] 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, [ ] 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, [ ] and SRC will enter into an agreement
in form and substance acceptable to SRC and its counsel, under
the terms of which [ ] will agree to a partial lock-up
of the Vested Option Shares for a period of six months
following the Effective Date during which [ ] will agree
that he will not sell more than 50% of the Vested Option
Shares.
B. The Company agrees to take all reasonable steps 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 [ ] as an
insured; provided, that the Company makes no representations and
warranties to [ ] 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.
C. In the event [ ] dies before he exercises his
rights regarding the Vested Option Shares, the personal
representative of [ ]'s estate shall also have the right
to exercise any of the remaining Vested Options during the period
of exercise provided in this Agreement.
D. 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 SRC, BTI, and TWC to
enter into this Agreement, [ ] hereby irrevocably and
unconditionally releases, acquits, and forever discharges SRC,
BTI, and TWC and each of their stockholders (other than SunRiver
Group, Inc.), predecessors, successors, assigns, agents,
directors, officers, employees, consultants, 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the
law firms of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇, P.C. (including, but not
limited to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇) ▇▇▇▇▇▇ & Carnelutti (including, but not limited to ▇▇▇▇▇
▇▇▇▇▇), and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (including, but not
limited to ▇▇▇ ▇▇▇▇▇▇▇▇) (all of the foregoing are collectively
called "Releasees"), from any and all charges, contracts,
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, or any
action relating to the governance of the Company which [ ]
now has or claims to have, or which [ ] 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, [ ] expressly releases
Releasees from any Claim [ ] 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
[ ] in the future by SRC.
B. As a material inducement to [ ] to enter into
this Agreement, SRC, BTI, and TWC each hereby irrevocably and
unconditionally releases, acquits, and forever discharge
[ ] and each of [ ]'s consultants and attorneys,
including without limitation, the law firms of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
(including, but not limited to, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇
Socks) and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger (including, but not limited
to, ▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇), 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 SRC, BTI, and TWC now has, or claims to have, or which SRC,
BTI, and TWC at any time heretofore had, or claimed to have,
against [ ] 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 SRC,
BTI, or TWC or [ ] 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.
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
[ ] in connection with any litigation or other legal
proceeding in which [ ] is a named defendant or witness
and which relates to any claim or claims from which[ ]
has been released by the Company pursuant to paragraph B. of this
Section 3. Moreover, [ ] shall be entitled to select
counsel to represent [ ] in connection with [ ]'s defense of
any such claim or claims, provided that such counsel selected by
[ ] must be acceptable to the Company in its reasonable
discretion.
E. Company acknowledges that [ ] 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 [ ] and TWC and/or SRC,
that the Indemnification Agreement remains in effect, and that
nothing contained in this Agreement is intended to modify
[ ]'s rights under the Indemnification Agreement; provided that
[ ] acknowledges and agrees that the Indemnification Agreement
is limited in application to the services of [ ] as
a director of TWC and/or SRC. A copy of the Indemnification
Agreement to which [ ] is a party is attached to this
Agreement as Exhibit C. 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 [ ], the Company, or any other
person, or that [ ], 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
[ ], the Company, 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
[ ] and the Company represent that they have not
heretofore filed any charges or complaints against the other with
any federal, state, or local governmental, judicial, or
administrative agencies. Each further agrees that they will not
file any charges or complaints, or initiate any suit or action,
against the other or others released herein; provided, that
nothing contained in this Section 5 shall be deemed to prohibit
any charge or complaint filed after the Effective Date for the
purpose of enforcing the terms and conditions of this Agreement
or of asserting damages resulting from a breach of this
Agreement.
6. NO REPRESENTATIONS
[ ] and the Company each represent and acknowledge
that in executing this release they are not relying and have not
relied on any representation or statement by any person or entity
with regard to the subject matter.
7. COOPERATION
[ ] further agrees that, without subpoena, he will,
at the Company's request and expense (such expenses including,
but not limited to, attorneys' fees incurred by [ ]),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.
8. CONFIDENTIALITY AND NON-DISPARAGEMENT
A. Subject to the requirements of state and federal
securities laws, [ ], TWC, SRC, and BTI agree 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.
B. [ ] acknowledges that in the course of
performance of his obligations to SRC, BTI, and TWC, he has
obtained and/or been informed of certain trade secrets and
valuable, confidential information of SRC, BTI, and TWC
including, but not limited to, financial information, financial
statements, loan transactions, customer lists, product pricing,
promotional incentives, marketing strategies, and the terms of
this Agreement (collectively the "Confidential Information"),
which Confidential Information has been uniquely developed by
SRC, BTI, and TWC and may not be readily obtained by third
parties from outside sources. Therefore, as a material
inducement to SRC, BTI, and TWC to enter into this Agreement,
[ ] accordingly agrees as follows:
a. He will not, directly or indirectly, in any individual
or representative capacity whatsoever, 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 SRC, BTI, TWC, or of any
Releasee.
b. He agrees that all Confidential Information
communicated to him by, or otherwise belonging to, SRC, BTI,
TWC, or their customers, whether before, during or after his
service as Director, shall at all times be held in strict
confidence and shall not be disclosed by [ ] without the prior
written consent of SRC, BTI, and TWC.
C. SRC, BTI, and TWC agree that they 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 [ ].
9. OWNERSHIP OF CLAIMS
[ ] 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.
10. SUCCESSORS
This Agreement shall be binding upon [ ] 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.
11. GOVERNING LAW
THIS AGREEMENT SHALL IN ALL RESPECTS BE INTERPRETED,
ENFORCED AND GOVERNED UNDER THE LAWS OF THE STATE OF TEXAS.
12. VENUE; SERVICE OF PROCESS
Any litigation arising out of or in connection with this
Agreement, whether initiated by [ ] or the Company, shall
be brought in the district courts of ▇▇▇▇▇▇ County, Texas, or in
the United States District Court for the Western District of
Texas. [ ], 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 ▇▇▇▇▇▇ 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 [ ] 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 ▇▇▇▇▇▇ County, Texas, or in the United States District
Court for the Western District of Texas, Austin, Texas. Nothing
herein shall affect the right of the Company to commence legal
proceedings or otherwise proceed against [ ] in any
jurisdiction or to serve process in any manner permitted by
applicable law.
13. 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.
14. 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.
15. 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.
16. 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. 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, and BTI as the case may be.
17. FULL AND INDEPENDENT KNOWLEDGE
[ ] 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.
18. 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) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; (ii) ▇▇▇▇▇ ▇▇▇▇▇▇;
(iii) ▇▇▇▇ ▇▇▇▇▇▇▇; (iv) ▇▇▇ ▇▇▇▇▇; and (v) [ ].
19. 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 [ ]:
As set forth on the signature page hereof.
If to Company:
SunRiver Corporation
Attn.: President
Echelon IV, Suite 200
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Facsimile/ (▇▇▇)▇▇▇-▇▇▇▇
B. Notice of Default
If a party to the Agreement asserts that another party has
breached or is breaching the Agreement, the non-breaching party
shall provide written notice of the alleged breach to the
breaching party. Thereafter, the breaching party will have a
period of three (3) business days to cure the breach.
20. COOPERATION
A. During the period beginning on the Effective Date, and
ending on December 31, 1996, [ ] agrees to take all
reasonable steps to reasonably cooperate in the transitioning of
duties to new board members and to share his knowledge regarding
the Company's affairs with those persons designated by the Board.
B. [ ] further agrees that, without subpoena, he
will at the Company's request and expense (such expense
including, but not limited to attorney's fees and expenses
incurred by [ ]), 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.
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.
__________________________________
[ ]
Address for notices: _________________________
_________________________
_________________________
Facsimile: ________________
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
BEFORE ME, the undersigned Notary Public, on this day
personally appeared [ ] ("[ ]"), 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:
TRADEWAVE CORPORATION BOUNDLESS TECHNOLOGIES, INC.
By: By:
______________________________ _________________________
EXHIBIT A
STOCK OPTION AGREEMENT
EXHIBIT B
LETTER OF RESIGNATION
EXHIBIT C
INDEMNIFICATION AGREEMENT
