exv10w1



 







Exhibit 10.1




ONYX SOFTWARE CORPORATION




Form of Employment Agreement Amendment




     Reference is made to that certain Employment Agreement dated as of _____, 200_(the
“Employment Agreement”), by and between                      (the “Executive”) and Onyx
Software Corporation (the “Company”)[, as amended by                     ]. The Employment Agreement
is hereby amended as follows:



     1. “409A”. The Employment Agreement is not intended to constitute a “nonqualified
deferred compensation plan” within the meaning of Section 409A of the Code. Notwithstanding the
foregoing, in the event the Employment Agreement or any compensation or benefit paid to Executive
thereunder is deemed to be subject to Section 409A of the Code, Executive and the Company agree to
negotiate in good faith to adopt such amendments that are necessary to comply with Section 409A of
the Code or to exempt such compensation or benefits from Section 409A. In addition, to the extent
(i) any compensation or benefits to which Executive becomes entitled under the Employment
Agreement, or any agreement or plan referenced therein, in connection with Executive’s termination
of employment with the Company constitute deferred compensation subject to Section 409A of the Code
and (ii) Executive is deemed at the time of such termination of employment to be a “specified”
executive under Section 409A of the Code, then such compensation or benefits shall not be made or
commence until the earliest of (i) the expiration of the six (6)-month period measured from the
date of Executive’s “separation from service” (as such term is at the time defined in Treasury
Regulations under Section 409A of the Code with the Company; (ii) the date Executive becomes
“disabled” (as defined in Section 409A of the Code); or (iii) the date of Executive’s death
following such separation from service; provided, however, that (i) such deferral shall only be
effected to the extent required to avoid adverse tax treatment to Executive, including (without
limitation) the additional twenty percent (20%) tax for which Executive would otherwise be liable
under Section 409A(a)(1)(B) of the Code in the absence of such deferral and (ii) the Company shall
provide written assurances satisfactory to Executive at the time of such termination of employment
that Executive is entitled to such compensation or benefits subject only to the foregoing
requirements under Section 409A of the Code. During any period compensation or benefits to
Executive are deferred pursuant to the foregoing, Executive shall be entitled to interest on such
deferral at a per annum rate equal to the highest rate of interest applicable to six (6)-month
money market accounts offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A.
or Bank of America, on the date of such “separation from service.” Upon the expiration of the
applicable deferral period, any compensation or benefits which would have otherwise been paid
during that period (whether in a single sum or in installments) in the absence of this paragraph
shall be paid to Executive or Executive’s beneficiary in one lump sum.



     2. Fees. Notwithstanding anything to the contrary in the Employment Agreement or
otherwise, the Employment Agreement is hereby amended as follows: “In the event that the Executive
is obligated to pay (or has paid) legal fees and/or other costs in order to enforce any of his/her
rights under this Employment Agreement, then the



 









 







Company (and/or any acquirer or successor) shall pay to Executive (or to his or her attorneys or
agents, as directed by Executive) the full amount of such fees/costs within 3 business days of
request for payment subject to refund back to the Company (and/or any acquirer or successor) to
the extent Executive does not ultimately prevail in the dispute.”



     3. This amendment may be executed in any number of counterparts, each of which counterparts
shall for all purposes be deemed to be an original, and all of such counterparts shall together
constitute but one and the same instrument.



IN WITNESS
WHEREOF, this Amendment is adopted and effective this
___day of July 2006.



Onyx Software Corporation:




	 	 	 	 	 	 
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