EXHIBIT 10.30
XXXXX.XXX, INC.
SEPARATION AGREEMENT
(Xxxx Xxxxxxx)
This Separation Agreement (this "Agreement") is entered into as of December
4, 2000, by and between Xxxxx.xxx, Inc., a Delaware corporation ("Onvia") and
Xxxx Xxxxxxx (the "Employee").
1. Recitals. The Employee was employed by Onvia. In recognition of the
Employee's service to Onvia, and to resolve any and all issues between them
arising out of the Employee's employment, Onvia and the Employee have
voluntarily agreed to enter into this Separation Agreement.
Now, therefore, in consideration of the mutual promises and conditions
contained herein, the parties agree as follows:
2. Separation. The Employee's employment with Onvia shall be terminated
effective December 31, 2000 (the "Date of Separation"). The Employee will have
no further job responsibilities at Onvia after the Date of Separation and
his/her employment shall cease as of such date. Except as otherwise provided in
this Agreement, all wages and employee benefits provided to the Employee by
Onvia shall cease as of the Date of Separation.
3. Payment to the Employee.
3.1 Wages and Severance. Onvia shall pay the Employee, as severance, the
equivalent of his regular base salary, which if annualized is
$180,000, for the period through and including June 30, 2002 (the
"Severance Period").
3.2 Vacation Pay. The parties agree that the Employee has 120 hours of
accrued and unused vacation as of the Date of Separation, which will
be paid on December 31, 2000.
3.3 Healthcare. Onvia shall pay Employee's monthly healthcare costs of
$948.24 through June 30, 2002. The full amount of $17,068.32 will be
paid on December 31, 2000.
3.4 Annual Bonus. Employee is eligible for an annual bonus of up to 25%
of annual salary. Employee will receive at least 50% of the annual
bonus based upon completion of priority tasks. Payment will be on or
before January 30, 2001.
3.5 Reimbursement of Business Expenses. Onvia shall reimburse the
Employee for his reasonable business expenses, if any, incurred
through and including the Date of Separation, on behalf of Onvia. The
Employee shall provide normal expense reports through December 31
prior to March of 2001; Company will pay expense reports not later
than April 15.
3.6 Ownership of Laptop Computer. As part of Employee's severance under
this Agreement, Onvia shall transfer ownership of Employee's laptop
computer and
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related data to Employee, provided that Employee agrees
to abide by all of his obligations under the Xxxxx.xxx Proprietary
Information and Inventions Agreement, the Xxxxx.xxx Nondisclosure
Agreement, and any other documents and agreements that the Employee is
subject to relating to his employment with Onvia.
3.7 Email Access. As part of Employee's severance under this Agreement,
Onvia shall maintain and Employee shall have access to his email
address at xxxxxxxx@xxxxx.xxx for the period through and including
June 30, 2001.
3.8 Payment in Full. The Employee acknowledges that, other than as stated
above in this Section 3, no other amounts are due and/or owed by
Onvia.
4. Stock Options. Employee has exercised all vested stock options and that
Employee has no unvested stock options of Onvia on the Date of Separation.
5. Repayment of Secured Promissory Note. Employee signed a Secured Promissory
Note for $150,000.00 on April 10, 2000 ("Note"), secured by a Pledge Agreement
dated April 10, 2000 (the "Pledge Agreement"). All terms of the Note, attached
hereto as Exhibit B, and the Pledge Agreement, attached hereto as Exhibit C, are
incorporated herein by this reference. Employee agrees to pay the balance of
principal and any accrued but unpaid interest under the Note on a quarterly
basis until paid in full on March 31, 2002. Employee's first quarterly payment
of approximately $______________ shall be due on June 31, 2001, as set forth on
Exhibit D.
6. Onvia's Repurchase Option. Pursuant to Section 3(a) of the Early Exercise
Notice and Restricted Stock Purchase Agreement dated as of December 15, 1999
("Purchase Agreement"), Onvia shall exercise its Repurchase Option, as that term
is defined in the Purchase Agreement, as set forth on the Notice of Repurchase
of Common Stock.
7. Waiver and Release of Claims. Except for (i) a material breach by Employee
of any provision of this Agreement, and Employee's failure to cure such breach
within ten (10) days after written notice from the Company to the Employee
specifying in reasonable detail the alleged breach, (ii) willful misfeasance or
gross negligence in the performance of Employee's duties, including without
limitation, dishonesty, conflict of interest, unethical business conduct,
breaches of confidentiality or failure to cooperate in any Company
investigation, and (iii) violation of laws or regulations in connection with his
duties, including without limitation claims arising under Section 16 of the
Securities and Exchange Act of 1934, as amended, Onvia, on behalf of Onvia's
past or present parent, subsidiary or otherwise affiliated corporations,
partnerships, or other business enterprises, and all of its or their past or
present affiliates, related entities, partners, subsidiaries, insurers,
predecessors, successors, assigns, directors, officers, shareholders, attorneys,
accountants, representatives, agents and employees (these entities/persons
together with Onvia are collectively referred to as "Associated Persons") hereby
releases in full, and forever discharges, acquits, and holds harmless, Xxxx
Xxxxxxx himself/herself and his/her marital community, heirs, executors,
administrators and assigns, including any of, from any and all claims, disputes,
suits, demands, causes of action, liabilities, damages, expenses (including but
not limited to attorneys' fees and costs), and obligations of every nature,
character
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and kind (collectively "Claims"), whether known or unknown, which may now exist
or hereafter may be discovered, specifically including without limitation any
and all Claims arising from or relating to the Employee's employment with Onvia.
This release includes, but is not limited to, any Claims that Xxxxx.xxx might
have under federal, state, county, city, municipal, and/or local law. ONVIA
ACKNOWLEDGES AND AGREES THAT THROUGH THIS RELEASE THE COMPANY IS GIVING UP ALL
RIGHTS AND CLAIMS OF EVERY KIND AND NATURE WHATSOEVER, KNOWN OR UNKNOWN,
CONTINGENT OR LIQUIDATED, THAT HE/SHE MAY HAVE AGAINST THE EMPLOYEE, AND THE
OTHER PERSONS NAMED ABOVE.
8. Mutual Waiver and Release of Claims. In return for the benefits received
and conferred by this Agreement, the Employee, on behalf of himself/herself and
his/her marital community, heirs, executors, administrators and assigns, hereby
releases in full, and forever discharges, acquits, and holds harmless, Onvia,
including any of Onvia's past or present parent, subsidiary or otherwise
affiliated corporations, partnerships, or other business enterprises, and all of
its or their past or present affiliates, related entities, partners,
subsidiaries, insurers, predecessors, successors, assigns, directors, officers,
shareholders, attorneys, accountants, representatives, agents and employees
(these entities/persons together with Onvia are collectively referred to as
"Associated Persons"), from any and all claims, disputes, suits, demands, causes
of action, liabilities, damages, expenses (including but not limited to
attorneys' fees and costs), and obligations of every nature, character and kind
(collectively "Claims"), whether known or unknown, which may now exist or
hereafter may be discovered, specifically including without limitation any and
all Claims arising from or relating to the Employee's employment with Onvia or
his/her provision of services to Onvia, or the Separation of such employment or
services, except for any Claim for payment or performance pursuant to the terms
of this Agreement. This release includes, but is not limited to, any Claims that
the Employee might have for reemployment or for additional compensation,
including without limitation any claim for any past, current or future wages,
bonuses, commission payments, sick leave pay out or benefits and applies to
claims for damages or other personal remedy that he/she might have under
federal, state, county, city, municipal, and/or local law dealing with
employment, contract, wage and hour, or civil rights matters, including, by way
of example and not limitation, applicable civil rights laws, Title VII of the
Civil Rights Act of 1965, the Post-War Civil Rights Act of 1964, the Post-War
Civil Rights Acts (42 USC Sections 1981-1988), the Age Discrimination in
Employment Act (as amended by the Older Workers Benefit Protection Act), the
Americans with Disabilities Act, the Family and Medical Leave Act, the
Rehabilitation Act of 1973, the Equal Pay Act of 1963, Executive Order 11246,
the Worker Adjustment and Retraining Notification Act, Washington's Law Against
Discrimination, Chapter 49.60 RCW, and Washington's Minimum Wage Act, Chapter
49.46 RCW, and any regulations under such laws. This release also includes, but
is not limited to, any Claims that the Employee might have for wrongful
discharge of employment, breach of express or implied contract, breach of a
covenant of good faith and fair dealing, both express and implied, negligent or
intentional infliction of emotional distress, negligent or intentional
misrepresentation, and defamation. This release shall not affect any
reimbursement rights the Employee may have under any medical insurance or any
accrued rights under any retirement savings plan. This waiver and release
specifically excludes any unemployment compensation claims the Employee may
choose to file. THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT THROUGH THIS RELEASE
HE/SHE IS GIVING UP ALL RIGHTS AND CLAIMS OF EVERY KIND AND NATURE
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WHATSOEVER, KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, THAT HE/SHE MAY HAVE
AGAINST ONVIA, AND THE OTHER PERSONS NAMED ABOVE, EXCEPT FOR THE RIGHTS
SPECIFICALLY EXCLUDED ABOVE.
9. Consideration and Revocation Period (Employees Forty (40) Years of Age and
Older). This Section 9 applies to Employees forty (40) years of age and older.
The Employee acknowledges that the foregoing consideration represents settlement
in full of all obligations owed to the Employee by Onvia. The Employee further
acknowledges that he/she has had the opportunity to review this Agreement and to
consult with independent counsel regarding its content and present and future
legal effects. Pursuant to the Older Workers Benefit Protection Act, the
Employee shall have up to twenty-one (21) days in which to consider this
Agreement and the option to sign it in fewer than twenty-one (21) days if
desired. In addition, this Agreement may be revoked by the Employee within seven
(7) days after Employee has signed it. For the revocation to be valid, it must
be in writing and sent before the expiration of the seven (7) day period via
over night mail to Xxxxx Xxxxxx at Onvia's offices at 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000-0000. Only after the expiration of the seven (7) day
period, will this Agreement become effective.
10. Consideration (Employees Under Forty (40) Years of Age). This Section 10
applies to Employees under forty (40) years of age. The Employee acknowledges
that the foregoing consideration represents settlement in full of all
obligations owed to the Employee by Onvia. The Employee further acknowledges
that he/she has had the opportunity to review this Agreement and to consult with
independent counsel regarding its content and present and future legal effects.
The Employee shall have up to seven (7) days in which to consider and sign this
Agreement and the option to sign it in fewer than seven (7) days if desired.
11. Dismissal of Pending Claims. The Employee and Onvia represent that neither
has filed a claim or other action against the other, including Associated
Persons.
12. No Retaliation. The Employee and Onvia shall in no way harass or retaliate
against the other (including any Onvia employee) for any reason.
13. Confidentiality. The Employee and Onvia (including its employees and
family members, officers, board members, advisory board members and investors)
agree to keep the existence of this Agreement, the contents and terms of this
Agreement, and the consideration for this Agreement strictly confidential. The
Employee and Onvia further agree not to disclose such information in any manner
whatsoever to any third party, unless required for tax reporting purposes or
otherwise required by law, provided that the Employee may disclose the terms of
this Agreement to his/her attorney, tax advisor, financial planner, and spouse
or significant other. In such instances, the Employee shall instruct any
individuals with whom this information is shared of this confidentiality
provision. Both parties understand that a breach of this provision is actionable
and could result in damages being assessed against the breaching party.
14. Non-Disparagement. The Employee and Onvia (including its employees,
officers, board members, and advisory board members) agree to not make any
derogatory, disparaging, defamatory, or slanderous remarks of any nature
whatsoever at any time about the other, or
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products or services (including Onvia's past or present employees, either
publicly or privately, unless required by law, during or after the Employee's
employment with Onvia).
15. No Admission of Liability. This Agreement shall not be construed as an
admission by Onvia or the Employee of any liability, breach of any agreement
between the parties, or violation of any statute or regulation.
16. Employee Nondisclosure and Noncompete Obligations. The Employee
acknowledges and reaffirms his/her obligations under the Xxxxx.xxx Employee
Manual, the Xxxxx.xxx Proprietary Information and Inventions Agreement, the
Xxxxx.xxx Nondisclosure Agreement, and any other documents and agreements that
the Employee is subject to relating to his/her employment with Onvia. The terms
of such documents shall remain in full force and effect. The Employee agrees to
strictly comply with their terms.
17. Return of Property. Except as set forth in Section 3.4, the Employee and
Onvia hereby represent that they have returned to the other all of the other's
property that was in their possession or control.
18. Miscellaneous.
18.1. Entire Agreement. This Agreement, along with any attachments and
addenda, is the entire, final and complete agreement and understanding of the
parties with respect to the subject matter hereof, and supersedes and replaces
all written and oral agreements and understandings heretofore made or existing
by and between the parties or their representatives with respect thereto.
18.2. Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall
be binding unless executed in writing by the party making the waiver.
18.3. Injunctive Relief. The parties recognize that irreparable and
continuing injury for which there is not adequate remedy at law will result to
the Employee or Onvia and its business and property if either breaches its or
his/her obligations under this Agreement. In the event of any such breach or
threatened breach, the injured party shall be entitled to seek temporary
injunctive relief upon a showing of said breach or threatened breach without
proof of actual damage and without posting a bond therefore, and/or an order of
temporary and permanent specific performance enforcing this Agreement, and any
other remedies provided by applicable law. The parties further understand and
agree that the word "temporary" as used herein shall include both temporary and
preliminary relief and/or remedies available.
18.4. Binding Effect. All rights, remedies and liabilities herein given
to or imposed upon the parties shall extend to, inure to the benefit of and
bind, as the circumstances may require, the parties and their respective heirs,
personal representatives, administrators, successors and permitted assigns.
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18.5. Amendment. No supplement, modification, or amendment of this
Agreement shall be valid, unless the same is in writing and signed by all
parties hereto.
18.6. Severability. In the event any provision or portion of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the remainder of this Agreement shall remain in full force and
effect and shall in no way be affected or invalidated thereby.
18.7. Enforcement. In the event that there is a breach of this Agreement
by either party or noncompliance with the terms contained herein, the
nondefaulting or prevailing party shall be entitled to recovery of any
reasonable attorney's fees and costs incurred in enforcing this Agreement.
18.8. Governing Law and Venue. This Agreement and the rights of the
parties hereunder shall be governed, construed and enforced in accordance with
the laws of the State of Washington, without regard to its conflict of law
principles. Any suit or action arising out of or in connection with this
Agreement, or any breach hereof, shall be brought and maintained in the federal
or state courts in Seattle, Washington. The parties hereby irrevocably submit to
the jurisdiction of such courts for the purpose of such suit or action and
hereby expressly and irrevocably waive, to the fullest extent permitted by law,
any objection it may now or hereafter have to the venue of any such suit or
action in any such court and any claim that any such suit or action has been
brought in an inconvenient forum.
18.9. Voluntary Act. The Employee acknowledges that he/she has read or
had the opportunity to review this Agreement and to consult with his or her own
attorney regarding its content and present and future legal effects. The
Employee covenants that he/she has freely and voluntarily executed this
Agreement, with a complete understanding of its terms and present and future
effect, and without any undue pressure or coercion from Onvia.
[signatures on next page]
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EMPLOYEE XXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxx Print Name: Xxxxx Xxxxxxx
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Title: Title: CEO
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