EXHIBIT 10.10
OneSoft
THE INTERNET COMMERCE COMPANY
December 30, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇, #▇▇▇
▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇▇:
The purpose of this letter agreement (the "Agreement") is to confirm the
terms regarding your separation of employment with OneSoft Corporation (the
"Company"). As more fully set forth below, the Company desires to provide you
with severance pay and benefits in exchange for certain agreements by you.
1. Change in Status and Separation of Employment.
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(a) You acknowledge that your full-time employment with the Company will
terminate effective December 31, 1999 (the "Change in Status Date"). Such
termination will be treated for all purposes as termination without cause.
You will continue to receive your current bi-weekly base salary (based upon
an annual twenty-six pay cycles) of Six Thousand Nine Hundred Twenty-Three
Dollars and Eight Cents ($6,923.08), less all applicable federal, state,
local and other employment-related deductions, through the Change in Status
Date. Effective January 1, 2000, you shall be a part-time employee of the
Company until the earlier of (i) the completion of the appropriate
documents to transfer your pending application for a H-1B visa to another
entity or (ii) June 31, 2000 (the "Separation Date"). The Company cannot
and does not represent that your application for an H-1B visa will be
approved.
(b) As a part-time employee, Company shall compensate you at the gross
hourly rate of $86.54, less all applicable federal, state, local and other
employment-related deductions. As a part-time employee, Company shall
guarantee you compensation in the amount of at least one (1) hour of per
week, regardless of whether Company requires your services during such
week. Company shall not require more than 1 hour of service from you per
week unless the parties agree otherwise. You acknowledge that Company does
not provide medical, dental, or vision insurance to part-time employees.
(c) After the Change in Status Date, you shall have no authority and shall
not represent yourself as having authority to act on behalf of the Company
without the express written permission of the Company. From and after the
Separation Date, you shall not have any authority and shall not represent
yourself as an agent or employee of the Company, except in connection with
your H-1B visa..
2. Severance Pay and Benefits. As soon as practicable following the your
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execution of this Agreement and the return of any Company property which is in
your possession or control, the Company shall provide you with the following
Severance Pay and Benefits:
(a) Severance Pay. Payment in a lump sum payment of the gross sum of
Forty-Two Thousand Dollars ($42,000) less all applicable federal, state,
and local employment taxes on or before January 31, 2000.
(b) COBRA. As a part-time employee of the Company, you will not be
eligible to participate in any of the Company's benefit plans. You may,
upon completion of the appropriate forms required by Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA"), continue your medical and
dental insurance coverage to the extent permitted by the provisions of
COBRA. The COBRA qualifying event shall be deemed to be the Change in
Status Date. If your elect COBRA coverage, the Company will provide you
with payment of the gross sum of Four Hundred Ninety-Four Dollars and
Fifty-Eight Cents ($494.58) (less any applicable federal, state and local
taxes), which gross sum reflects an amount equaling the cost of medical and
dental insurance premiums that would be due pursuant to COBRA for a three
(3) month period, paid in approximately equal monthly installments from
January 2000 to March 2000. Notwithstanding the foregoing, in the event
that you become eligible to receive health insurance coverage from a third
party at any time from the Change in Status Date through March 31, 2000,
the Company will not be obligated to and shall not make any payment
pursuant to this paragraph 2(a) from the date that you become eligible for
such coverage.
(c) Stock Options.
(i) The Company will accelerate the vesting of your option to
purchase 100,000 shares so that the specified options, which otherwise
would terminate on the Change in Status Date, will vest on the Change
in Status Date. The options will be treated by the Company to the
extent possible by law as an Incentive Stock Options. You will have
until three (3) months after the Change in Status Date to exercise the
option. If you fail to exercise the option within such period, the
option will terminate pursuant to the terms of the stock option
agreement entered into by you and the Company on February 1, 1999. The
portion of the option not so accelerated will terminate on the Change
of Status Date.
(ii) As a condition of the acceleration of the option as provided in
Section 2(c)(i), you agree that you will not, without the prior
written consent of OneSoft Corporation, directly or indirectly, offer,
sell, contract to sell, hypothecate, assign,
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pledge, encumber or otherwise dispose (or enter into any transaction
which is designed to, or could be expected to, result in the
disposition by any person) of the accelerated option for 16,667 of the
total of 100,000 shares or such 16,667 shares themselves from now
until December 31, 2000.
(iii) The Company shall have the immediate right, upon written
notice to you, to repurchase the 16,667 shares described in Section
2(c)(ii) at the price at which you purchased them as follows:
(A) on or after fifteen (15) days following the Separation
Date if, through no fault of the Company's, you fail or refuse
to sign a Release in the form attached hereto as Exhibit A by
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that date;
(B) at the time of or after any material violation that is not
cured by you within 5 business days after written notice from
Company to you of a violation by you of your material
obligations under Section 3 of this Agreement;
(C) on December 31, 2000 or thereafter unless
(1) you have complied in all material respects with all
of your obligations under Section 3 of this Agreement; and
(2) you have submitted to OneSoft Corporation's CEO
written certification under oath, in the form attached
hereto as Exhibit B, that you are in full compliance with
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your obligations set forth in Section 3.
You acknowledge and agree that the Severance Pay and Benefits provided in
this Agreement are not otherwise due or owing to you under any Company
employment agreement (oral or written) or any Company policy or practice, and
that this Severance Pay to be provided to you is not intended to, and shall not
constitute, a severance plan, and shall confer no benefit on anyone other than
the parties hereto. You further acknowledge that except for the specific
financial consideration set forth in this Agreement, you are not and shall not
in the future be entitled to any other compensation including, without
limitation, other wages, commissions, bonuses, vacation pay, holiday pay or any
other form of compensation or benefit.
3. Covenants by You. You expressly acknowledge and agree to the
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following:
(a) You have returned to the Company all Company documents (and any copies
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thereof) and property, except as agreed otherwise by the parties as set
forth in Schedule E hereto, and that you shall abide by any and all common
law and/or statutory obligations relating to protection and non-disclosure
of the Company's trade secrets and/or confidential and proprietary
documents and information.
(b) You will abide by all of the provisions except Section 2 of the
Noncompetition, Nonsolicitation, and Nondisclosure Agreement that you
signed on May 21, 1999 and which is incorporated herein by reference (the
"May 21 Agreement"). Section 2 of the May 21 Agreement will no longer be
enforceable by the Company or you. The remainder of the provisions in the
May 21 Agreement will remain fully enforceable.
(c) Until and through March 31, 2000, you will not perform any services,
whether as an employee or a contractor or otherwise, for any other person,
corporation or other entity that is or is planning to develop and
distribute computer software that enables companies to conduct e-commerce;
provide consulting services to companies concerning the market of e-
commerce and methods to improve one's business by conducting e-commerce;
assist companies in building their e-commerce web sites by implementing the
company's software or software created by third parties; or create, host or
manage web sites or other e-commerce applications created by the company or
third parties, unless you obtain the prior written approval of the CEO of
OneSoft Corporation or Executive Vice President ▇▇▇▇▇ ▇▇▇▇▇.
(d) From the Change in Status Date and through December 31, 2000, you will
not perform the same or similar services as you performed for the Company
to any of the direct competitors of the Company listed on Exhibit C or to
any entity that prior to your employment by or provisions of services to
such entity is compared to OneSoft as materially competitive or compared to
any direct competitor (except IBM or Microsoft) as materially competitive,
by any of the investment, banking and analyst organizations listed on
Exhibit D. You may submit the name of an entity, in writing (to General
Counsel or ▇▇▇▇▇ ▇. ▇▇▇▇▇), for the Company to verify whether or not such
entity has been compared to OneSoft as materially competitive or compared
to any direct competitor (except IBM or Microsoft) as materially
competitive, by any of the investment, banking and analyst organizations
listed on Exhibit D. Upon such submission, the Company shall provide you
with an answer, properly evidenced, within five (5) business days; such
answer shall be valid for thirty (30) days from the date of the Company's
response.
(e) Notwithstanding Sections 3(c) and (d), you may continue to hold or
purchase at prevailing publicly traded prices not more than one per cent
(1%) of the outstanding and
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issued shares of any publicly traded company.
(f) All information relating in any way to the negotiation of this
Agreement, including the terms and amount of financial consideration
provided for in this Agreement, shall be held confidential by you and shall
not be publicized or disclosed to any person (other than an immediate
family member, legal counsel or financial advisor, provided that any such
individual to whom disclosure is made agrees to be bound by these
confidentiality obligations), business entity or government agency (except
as mandated by state or federal law).
(g) You will not intentionally make any statements that are professionally
or personally disparaging about, or adverse to, the interests of the
Company (including its officers, directors and employees) including, but
not limited to, any statements that disparage any person, product, service,
finances, financial condition, capability or any other aspect of the
business of the Company, (it being understood that you may, subject to the
other provisions of this Agreement, promote products and services offered
by your employer that may be competitive to those offered by the Company)
and you will not engage in any conduct which is intended to harm
professionally or personally the reputation of the Company (including its
officers, directors and employees).
(h) The breach of any of the foregoing covenants by you shall constitute a
material breach of this Agreement and shall relieve the Company of any
further obligations hereunder and, in addition to any other legal or
equitable remedy available to the Company, shall entitle the Company to
exercise its repurchase rights pursuant to Section 2 of this Agreement.
4. Release of Claims. You hereby agree and acknowledge that by signing
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this letter, you are releasing the Company from and waiving your right to assert
any form of legal claim against the Company/1/ (as defined in footnote one
below) whatsoever for any alleged action, inaction or circumstance existing or
arising from the beginning of time through the Change in Status Date. Your
release and waiver herein is intended to bar any form of legal claim, charge,
complaint or any other form of action (jointly referred to as "Claims") against
the Company seeking any form of relief including, without limitation, equitable
relief (whether declaratory, injunctive or otherwise), the recovery of any
damages or any other form of monetary recovery whatsoever (including, without
limitation, back pay, front pay, compensatory damages,
_______________
/1/ For the purposes of this Section 5, the parties agree that the term
"Company" shall include OneSoft Corporation, its divisions, affiliates, parents
and subsidiaries, and its and their respective officers, directors, employees,
agents and assigns.
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emotional distress damages, punitive damages, attorneys fees and any other
costs) against the Company, for any alleged action, inaction or circumstance
existing or arising through the Change in Status Date.
Without limiting the foregoing general release and waiver, you specifically
release the Company from any and waive your right to bring any Claim arising
from or related to your employment relationship with the Company or the
termination thereof, including, without limitation:
** Claims under any state or federal discrimination, fair employment
practices or other employment related statute, regulation or executive
order (as they may have been amended through the Change in Status
Date) prohibiting discrimination or harassment based upon any
protected status including, without limitation, race, national origin,
age, gender, marital status, disability, veteran status or sexual
orientation. Without limitation, specifically included in this
paragraph are any Claims arising under the federal Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the Civil
Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans
With Disabilities Act and any similar Virginia or other state statute.
** Claims under any other state or federal employment related statute,
regulation or executive order (as they may have been amended through
the Separation Date) relating to wages, hours or any other terms and
conditions of employment. Without limitation, specifically included
in this paragraph are any Claims arising under the Fair Labor
Standards Act, the Family and Medical Leave Act of 1993, the National
Labor Relations Act, the Employee Retirement Income Security Act of
1974, the Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA) and any similar Virginia or other state statute.
** Claims under any state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good
faith and fair dealing, violation of public policy, defamation,
interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence.
** Any other Claim arising under local, state or federal law.
Notwithstanding the foregoing, this section does not release the Company
from any
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obligation expressly set forth in this Agreement. You acknowledge and agree
that, but for providing this waiver and release, you would not be receiving the
Severance Pay being provided to you under the terms of this Agreement.
The Company hereby agrees and acknowledges that by signing this letter, the
Company is releasing you from and waiving its right to assert any form of legal
claim against you asserted whatsoever for any alleged action, inaction or
circumstance existing or arising from the beginning of time through the Change
in Status Date. The Company's release and waiver herein is intended to bar any
form of legal claim, charge, complaint or any other form of action (jointly
referred to as "Claims") against you seeking any form of relief including,
without limitation, equitable relief (whether declaratory, injunctive or
otherwise), the recovery of any damages or any other form of monetary recovery
whatsoever.
Notwithstanding the foregoing, this section does not release you from any
obligation expressly set forth in this Agreement.
5. Entire Agreement/Choice of Law/Enforceability. You acknowledge and
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agree that this Agreement supersedes any and all prior and contemporaneous oral
and/or written agreements between you and the Company, and sets forth the entire
agreement between you and the Company. No variations or modifications hereof
shall be deemed valid unless reduced to writing and signed by the parties
hereto. This Agreement shall be deemed to have been made in the Commonwealth of
Virginia and shall be governed by and construed in accordance with the laws of
the Commonwealth of Virginia, without giving effect to conflict of law
principles. You agree that any action, demand, claim or counterclaim relating
to the terms and provisions of this Agreement, or to its breach, shall be
commenced in Virginia in a court of competent jurisdiction, and you further
acknowledge that venue for such actions shall lie exclusively in Virginia and
that material witnesses and documents would be located in Virginia. The
provisions of this letter are severable, and if for any reason any part hereof
shall be found to be unenforceable, the remaining provisions shall be enforced
in full.
By executing this Agreement, you are acknowledging that you have been
afforded sufficient time to understand the terms and effects of this letter,
that your agreements and obligations hereunder are made voluntarily, knowingly
and without duress, and that neither the Company nor its agents or
representatives have made any representations inconsistent with the provisions
of this letter.
If the foregoing correctly sets forth our understanding, please sign, date
and return the enclosed copy of this letter to ▇▇▇▇▇ ▇▇▇▇▇ at OneSoft
Corporation within ten (10) days.
Very truly yours,
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OneSoft Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Dated: December 30, 1999
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Confirmed and Agreed:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Dated: December 30, 1999
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EXHIBIT A
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RELEASE
In consideration of the acceleration of the vesting of your option to purchase
16,667 shares of common stock of OneSoft Corporation (the "Company"), I, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, hereby agree and acknowledge as follows:
I hereby waive my right to assert any form of legal claim against the Company/2/
whatsoever for any alleged action, inaction or circumstance existing or arising
from the beginning of time through ________________ (the "Separation Date"). My
waiver and release herein is intended to bar any form of legal claim, charge,
complaint or any other form of action (jointly referred to as "Claims") against
the Company seeking any form of relief including, without limitation, equitable
relief (whether declaratory, injunctive or otherwise), the recovery of any
damages or any other form of monetary recovery whatsoever (including, without
limitation, back pay, front pay, compensatory damages, emotional distress
damages, punitive damages, attorneys fees and any other costs) against the
Company, for any alleged action, inaction or circumstance existing or arising
through the "Separation Date".
Without limiting the foregoing general waiver and release, I specifically
release the Company from and waive my right to bring any Claim arising from or
related to my employment relationship with the Company or the termination
thereof, including, without limitation:
** Claims under any state or federal discrimination, fair employment
practices or other employment related statute, regulation or executive
order (as they may have been amended through the Change in Status
Date) prohibiting discrimination or harassment based upon any
protected status including, without limitation, race, national origin,
age, gender, marital status, disability, veteran status or sexual
orientation. Without limitation, specifically included in this
paragraph are any Claims arising under the federal Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the Civil
Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans
With Disabilities Act and any similar Virginia or other state statute.
____________________
/2/ For the purposes of this Release, the parties agree that the term "Company"
shall include OneSoft Corporation, its divisions, affiliates, parents and
subsidiaries, and its and their respective officers, directors, employees,
agents and assigns.
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** Claims under any other state or federal employment related statute,
regulation or executive order (as they may have been amended through
the Separation Date) relating to wages, hours or any other terms and
conditions of employment. Without limitation, specifically included
in this paragraph are any Claims arising under the Fair Labor
Standards Act, the Family and Medical Leave Act of 1993, the National
Labor Relations Act, the Employee Retirement Income Security Act of
1974, the Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA) and any similar Virginia or other state statute.
** Claims under any state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good
faith and fair dealing, violation of public policy, defamation,
interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence.
** Any other Claim arising under local, state or federal law.
I acknowledge and agree that, but for providing this waiver and release, the
Company would have an immediate right upon written notice to me, to repurchase
16,667 shares of the acceleration option pursuant to the Separation Agreement
which I entered into with the Company on December __, 1999.
Signed this 30th day of December, 2000
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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EXHIBIT B
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AFFIDAVIT OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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I, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, on oath depose and say:
1. I hereby attest that, as of the date of this Affidavit, I am in full
compliance with each of the obligations specified in Section 3 of the Settlement
Agreement and Release of Claims which I entered into with OneSoft Corporation on
December 30, 1999.
Signed under the pains and penalties of perjury this 31st day of December,
2000.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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EXHIBIT C
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1. Broadvision
2. Interworld
3. Vignette
4. Art Technology Group
5. International Business Machines
6. Microsoft Corporation
7. Open Market
8. Blue Martini
9. Space Works, Inc.
10. ▇▇▇▇▇▇▇
11. Intershop
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EXHIBIT D
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1. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and Associates
2. ▇▇▇▇▇▇ Brothers
3. ▇▇▇▇▇ Capital
4. DB ▇▇▇▇ ▇▇▇▇▇
5. Societe Generale
6. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
7. CS First Boston
8. ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
9. Forrester
10. Meta
11. Gartner
12. Jupiter
13. Aberdeen
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EXHIBIT E
-Cellular Phone (OneSoft agrees to pay the base cellular phone bill of $89 a
month for the months of January, February and March of the year 2000).
-Sony Laptop Computer
Both items to be returned to OneSoft five (5) days after the Separation Date
identified in the Agreement.
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