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EXHIBIT 10.09
SEPARATION AGREEMENT
The Separation Agreement ("Agreement") is entered into effective April 14,
1999 ("Effective Date") between Broadbase Information Systems, Inc., a
California Corporation, its officers, directors, employees, agents, attorneys,
assignees, successors and predecessors (collectively, "Broadbase") and Xxxxx
Xxxxxxxxx ("Employee").
WHEREAS, Employee has been employed by Broadbase, and both Employee and
Broadbase have agreed that Employee's employment shall terminate effective June
30, 1999 ("Termination Date"). Broadbase and Employee wish to sever their
relationship in a way that preserves the goodwill which exists between them.
NOW THEREFORE, for and in consideration of the payment by Broadbase to
Employee of the sums described in this Agreement, the parties agree as follows:
1. TERMINATION DATE: Employee's employment with Broadbase is terminated
effective June 30, 1999 (the "Termination Date"). This represents 75 days
notice, and shall include full health benefits, stock option vesting, vacation
accrual and target compensation for the notice period. The termination is not
intended to fall within the specific definition of Section 3.3 of your stock
option agreements.
2. VESTING OF SHARES. Employee currently holds option(s) to purchase shares
of Broadbase Common Stock. Employee's options will continue to vest through
June 30, 1999. Any options not vested by that date shall terminate. Employee
may exercise [his/her] vested options in accordance with the Broadbase 1996
Equity Incentive Plan ("Incentive Plan"); it being agreed that the Company
shall repurchase all shares previously purchased by Employee which are unvested
as of the Termination Date. As of June 30, 1999, the portion of the promissory
note relating to the vested shares from Employee's 11/25/96 grant shall be
forgiven (per Exhibit A to this Agreement, which also sets forth the total
number of vested shares either exercised or subject to exercise by Employee.
3. ACKNOWLEDGMENT OF PAYMENT OF WAGES. On the Termination Date, Broadbase
will deliver to Employee a final paycheck of all accrued wages, salary,
bonuses, reimbursable expenses, and accrued but unused vacation pay due and
owing to [his/her] from Broadbase as of the Termination Date.
4. PAYMENT. In addition, the parties agree that Employee will receive
compensation through June 30, 1999 as severance pay. This severance pay is in
addition to any amounts due Employee from Broadbase and is given as
consideration for the release set forth below. Broadbase will pay this to
Employee less all normal withholding and deductions.
5. NONSOLICITATION. Employee agrees that, during the period that begins on
his Termination Date and ends on June 30, 2000 (the "Restrictive Period"), he
will not: a) personally or through others, encourage, induce, attempt to
induce, solicit or attempt to solicit (on Employee's own behalf or on behalf of
any other person or entity) anyone who is employed at that time, or was
employed during the previous three months, by Broadbase, or any of Broadbase's
subsidiaries to leave his or her employment with Broadbase, or any of
Broadbase's subsidiaries; or b) personally or through others, interfere or
attempt to interfere with the relationship or prospective relationship of
Broadbase with any person or entity that is, was or is expected to become, a
customer or client of Broadbase or of any of Broadbase's subsidiaries.
6. COBRA COVERAGE. Employee has the option, at [his/her] own expense; to
extend the health insurance coverage currently provided by Broadbase for a
period of 18 months from the Termination Date pursuant to the terms and
conditions of COBRA. Employee has 60 days from the Termination Date to notify
Broadbase in writing of [his/her] election to so continue [his/her] continuation
coverage.
7. RETURN OF COMPANY PROPERTY. Employee hereby represents and warrants to
Broadbase that [he/she] has returned to Broadbase any and all of Broadbase's
property or data of any type whatsoever that was in [his/her] possession or
control.
8. CONFIDENTIAL INFORMATION. Employee hereby acknowledges that [he/she] is
bound by the attached Agreement dated November 1, 1996, that as a result of
[his/her] employment with Broadbase [he/she] has had access to the Confidential
Information (as defined in such agreement) of Broadbase, that [he/she] will
hold all such Confidential Information in strictest confidence and that
[he/she] may not make any use of such Confidential Information on behalf of any
third party. Employee further confirms that [he/she] has delivered to Broadbase
all documents and data of any nature containing or pertaining to such
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Confidential Information and that [he/she] has not taken with [him/her] any
such documents or data of any reproduction thereof.
9. REPRESENTATION REGARDING EXISTING CLAIMS. Employee hereby warrants that as
of the Effective Date of this Agreement, [he/she] has not filed any legal
action in any court naming Broadbase as a party.
10. WAIVER OF CLAIMS. The payments and agreements set forth in the Agreement
are in full satisfaction of any and all accrued salary, vacation pay, bonus
pay, profit-sharing, termination benefits or other compensation to which
Employee may be entitled by virtue of [his/her] employment with Broadbase or
[his/her] termination of employment. Employee hereby releases and waives any
and all claims [he/she] may have against Broadbase or any of their officers,
directors, employees, managers, shareholders, partners, agents, attorneys,
parent corporations, subsidiaries, successors, and assigns, including without
limitation claims for any additional compensation or benefits arising out of
the termination of [his/her] employment, any claims for any additional stock
or stock options and any claims of wrongful termination, breach of contract or
discrimination under state or federal law.
Employee hereby expressly waives any benefits of Section 1542 of the Civil
Code of the State of California, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
11. NONDISPARAGEMENT. Employee agrees that [he/she] will not disparage the
Company or its products, services, agents, representatives, directors,
officers, shareholders, attorneys, employees, vendors, affiliates, successors
or assigns, or any person acting by, through, under or in concert with any of
them, with any written or oral statement.
12. LEGAL AND EQUITABLE REMEDIES. Employee agrees that Broadbase shall have
the right to enforce this Agreement and any of its provisions by injunction,
specific performance or other equitable relief without prejudice to any other
rights or remedies Broadbase may have at law or in equity for breach of this
Agreement.
13. ATTORNEY'S FEES. If any action at law or in equity is brought to enforce
the terms of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorney's fees, costs and expenses from the other party, in
addition to any other relief to which such prevailing party may be entitled.
14. CONFIDENTIALITY. The contents, terms and conditions of this Agreement
shall be kept confidential by Employee and shall not be disclosed except to
[his/her] attorneys or pursuant to subpoena or court order. Any breach of this
confidentiality provision shall be deemed a material breach of this Agreement.
15. NO ADMISSION OF LIABILITY. This Agreement is not and shall not be
construed or contended by you to be an admission or evidence of any wrongdoing
or liability on the part of Broadbase, its representatives, heirs, executors,
attorneys, agents, partners, officers, shareholders, directors, employees,
subsidiaries, affiliates, divisions, successors or assigns. This Agreement
shall be afforded the maximum protection allowable under California Evidence
Code Section 1152 and/or any other state or Federal provisions of similar
effect.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
Employee and Broadbase with respect to the subject matter hereof and supersedes
all prior negotiations and agreements, whether written or oral, relating to
such subject matter. Employee acknowledges that neither Broadbase nor its
agents or attorneys, have made any promise, representation or warranty
whatsoever, either expressed or implied, written or oral, which is not
contained in this Agreement for the purpose of inducing Employee to execute the
Agreement, and Employee acknowledges that [he/she] has executed this Agreement
in reliance only upon such promises, representations and warranties as are
contained herein.
17. MODIFICATION. It is expressly agreed that this Agreement may not be
altered, amended, modified, or otherwise changed in any respect except by
another written agreement that specifically refers to this Agreement, duly
executed by authorized representatives of each of the Parties hereto.
EMPLOYEE Broadbase Information Systems
By: XXXXX X XXXXXXXXX By: XXXXX X. BAY
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Date: 6/23/99 Date: 6-23-99
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BROADBASE NONSOLICITATION INSERT
Employee further agrees that, during the period that begins on his
Termination Date and ends on __________ (the "Restrictive Period"), he will not:
(a) personally or through others, encourage, induce, attempt to induce,
solicit or attempt to solicit (on Employee's own behalf or on behalf of any
other person or entity) any one who is employed at that time, or was employed
during the previous three months, by the Company, or any of the Company's
subsidiaries to leave his or her employment with the Company or any of the
Company's subsidiaries;
(b) personally or through others, interfere or attempt to interfere with
the relationship or prospective relationship of the Company with any person or
entity that is, was or is expected to become, a customer or client of the
Company or of any of the Company's subsidiaries.
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Exhibit A
PERSONNEL OPTION STATUS BROADBASE INFORMATION SYSTEMS, INC. Page: 1
ID: 00-0000000 File: Oplstmt
000 Xxxxxxxxxxxx Xxxxx Date: 5/20/99
Xxxxx Xxxx, XX 00000 Time: 8:59:05 AM
AS OF 6/30/99
XXXXX X. XXXXXXXXX ID: 16
0000 XXXXXXXXXX XXXXXX
XXX XXXXXXXXX, XX 00000
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OPTION
NUMBER DATE PLAN TYPE GRANTED PRICE EXERCISED VESTED CANCELLED UNVESTED OUTSTANDING EXERCISABLE
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000014 11/25/96 1996 ISO 337,500 $0.033300 337,500 217,969 0 119,531 0 -119,531
0000601 5/23/97 1996 ISO 67,500 $0.250000 0 35,156 0 32,344 67,500 35,156
------- ------- ------- ------ ------- -------- --------
405,000 337,500 253,125 0 151,875 67,500 -84,375
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INFORMATION CURRENTLY ON FILE
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TAX RATE % BROKER REGISTRATION ALTERNATE ADDRESS
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Federal 28.000
Social Security 6.200
Medicare 1.450
CA-State 0.000
