SEPARATION AND RELEASE AGREEMENT (Matthew Rowley)
Exhibit
10.10
(Xxxxxxx
Xxxxxx)
This
Separation and Release Agreement (“Agreement”) is made and entered into by and
between Xxxxxxx Xxxxxx (“Employee”) and Onvia, Inc. (the
“Company”).
Both
parties wish to set forth the terms and conditions of Employee’s departure from
his employment with the Company. The parties agree as follows:
1.
Separation
Date.
Employee’s employment with the Company is ending effective May
31, 2007
(the
“Separation Date”). Employee will be paid his salary through the Separation
Date, less all required or agreed upon withholding. Employee will not be
entitled to receive any further compensation or benefits from the Company except
as described in the balance of this Agreement. Employee acknowledges that
following the Separation Date, Employee will have no authority to bind the
Company to any contract or agreement, or to act on behalf of the Company or
any
of its affiliates, and the Company will not have any obligation to reimburse
Employee for any expenses incurred by Employee on or after the Separation
Date.
2.
Severance
Payment.
The Company will pay Employee a total sum of Eighty
Five Thousand Dollars ($85,000.00) as
a
severance payment (“Severance Payment”). The Severance Payment will be
subject to all lawful or required deductions and will be paid as salary
continuation through November 30, 2007, following the same direct deposit
instructions authorized by Employee for payroll purposes. Employee and the
Company agree that the Severance Payment represents sufficient consideration
for
the potential claims being released.
3.
Accrued
Paid Time Off.
Employee
will be paid for all accrued but unused paid time off (PTO) as of the Separation
Date, less all lawful and required deductions. PTO will cease to accrue after
the Separation Date.
4.
Stock
Options Vesting and Acceleration. As
of the
Separation Date, Employee has Seventy
Thousand Eight Hundred Twenty Two (70,822)
fully
vested and exercisable stock options granted under the Onvia, Inc. Amended
and
Restated 1999 Stock Option Plan (the “1999 Plan”). Further, Six
Thousand (6,000)
additional stock options will be accelerated pursuant to Employee’s Employment
and Noncompetition Agreement dated as of September 24, 2001, so that such
options will be fully vested and exercisable as of the Separation Date,
contingent on Employee’s execution of this Agreement and the expiration of the
revocation period. Employee acknowledges that accelerated stock options will
not
qualify for preferential income tax treatment as an incentive stock option
under
the Internal Revenue Code. Pursuant to the terms of the 1999 Plan relating
to
termination of employment, Employee will have three (3) months from the
Separation Date (until August 31, 2007) to exercise each stock option to the
extent such stock option is or becomes vested as of the Separation Date,
provided, however that no stock option will remain exercisable beyond its
maximum stated term. Nonvested stock options will be forfeited upon the
Separation Date.
5.
Retirement
Plans.
Employee
will continue to be eligible as an “employee” of the Company through the
Separation Date for employer contributions made to the Company’s 401(k) Plan,
according to the terms of that plan. Severance payments payable under this
Agreement are not included for the purpose of calculating contributions made
on
Employee’s behalf to the Company’s 401(k) Plan. In addition, Employee will be
entitled to receive all accrued and vested benefits from the 401(k) Plan,
according to the terms of that plan. Nonvested benefits will be forfeited upon
the Separation Date.
6.
Medical
Benefits/COBRA Coverage.
The
Company will continue to provide coverage under any group medical benefits
plan
under which Employee and Employee’s dependents were covered on the date of this
Agreement, through and including the Separation Date. Employee will be
responsible to pay any amounts chargeable as “employee premium contribution”
amounts with respect to any such coverage. Employee and Employee’s covered
dependents may be eligible to elect a temporary extension of group health plan
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as
subsequently amended (“COBRA”). In
the
event that Employee elects to extend his group health plan coverage, the
Employee will be solely responsible for costs associated with such continuation
coverage for Employee and Employee’s covered dependents. The
Company will pay Employee a total sum of Six
Thousand Two Hundred Thirteen Dollars and Forty Eighty Cents
($6,213.48),
which
Employee may use to pay for such continuation coverage costs. From
and
after the Separation Date, the Company will have no responsibility to provide
medical benefits coverage to Employee.
7.
Release of Claims. In
exchange for the Severance Payment and other benefits under this Agreement,
which are in addition to the benefits that Employee is otherwise entitled to
receive, Employee and Employee’s successors and assigns forever release and
discharge the Company and its affiliated companies, and the employees, agents,
officers, directors and shareholders of any of them, from all claims, demands,
actions or causes of action, rights or damages, including costs and attorneys’
fees, (collectively,
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“Claims”),
which Employee may have on behalf of himself, known, unknown, or later
discovered which arose prior to the date Employee signs this Agreement.
7.1.
This
release includes but is not limited to: Claims for breach of express or implied
contract, breach of covenant of good faith and fair dealing, wrongful discharge,
constructive discharge, defamation, tortious interference with business
expectancy, personal injury, mental distress, or impaired reputation; Claims
for
unpaid salary, wages, commissions, bonuses or other compensation under any
federal, state or local wage and hour or wage claims statutes; Claims arising
under the Age Discrimination in Employment Act, the Civil Rights Acts, the
Equal
Pay Act, the Americans with Disabilities Act, or any other federal, state or
local laws or regulations prohibiting employment discrimination; Claims under
any federal, state or local leave laws like the Family Medical Leave Act; Claims
under the Employee Retirement Income Security Act; and Claims alleging any
legal
restriction on the Company’s right to terminate its employees.
8.
No Admission of Liability. Employee
understands and acknowledges that this Agreement does not constitute an
admission by the Company of any wrongdoing or liability.
9.
Confidential Information.
9.1.
Non-Disclosure.
Employee acknowledges that by virtue of his employment with the Company,
Employee has access to and acquired knowledge of trade secrets and information
relating to the business of the Company and its affiliates that are not
generally known outside of the Company (“Confidential Information”). At all
times during and after employment, Employee agrees to hold the Confidential
Information in trust and strict confidence. Employee agrees not to use or
disclose the Confidential Information for any purpose other than for the benefit
of the Company.
9.2.
Return
of Materials.
Employee will promptly deliver to the Company, and will not remove from the
Company’s premises or possession, all documents and materials, or copies
thereof, that contain Confidential Information or that Employee prepared or
acquired in connection with the Company’s business.
9.3.
Injunctive
Relief.
Employee acknowledges and agrees that the Company has the right to obtain an
injunction to restrain Employee from disclosing Confidential Information and
is
not required to post bond or other security.
10.
Non-Compete/Non-Solicitation
and Other Obligations.
Employee specifically reaffirms that Employee will continue to abide by the
provisions of his Employment and Noncompetition Agreement, any Onvia Proprietary
Information and Inventions Agreement, the Onvia Nondisclosure Agreement, and
any
other documents and agreements that the Employee signed during his employment
with Onvia and with which Employee is familiar. Such agreements remain in full
force and effect, and nothing in this Agreement is intended to supersede those
agreements.
11.
Arbitration.
11.1.
Notice
and Selection of Arbitrator.
The parties agree that, with the exception of injunctive and other relief that
the Company may seek to enforce Employee’s confidentiality obligations under of
this Agreement, any dispute arising under this Agreement must be submitted
to
arbitration in King County, Washington before a disinterested arbitrator.
Arbitration will be commenced by service on the other party to the dispute
of a
written request for arbitration, containing a brief description of the matter
at
issue and the names and addresses of three arbitrators acceptable to the
petitioner. Within thirty (30) days after receiving the request, the other
party must either select one of the proposed arbitrators or provide the names
and addresses of three other arbitrators acceptable to the proposing
party. If the parties are unable to select an arbitrator from those
proposed, an arbitrator will be chosen impartially by the American Arbitration
Association.
11.2.
Rules
of Proceeding.
Arbitration proceedings will be conducted under the commercial rules then
prevailing of the American Arbitration Association. The arbitrator is not
bound to any formal rules of evidence or procedure, and may consider such
matters as a reasonable businessperson would take into account in
decision-making.
11.3.
Decision
Final and Binding.
The decision of the arbitrator will be final and binding on the parties, and
may
be entered and enforced in any court of competent jurisdiction.
11.4.
Expenses.
Each party will share equally the expenses of the arbitrator and other
arbitration expenses. Attorneys’ fees, witness fees and other expenses
incurred by a party in preparing for the arbitration are not “arbitration
expenses” and will be paid by the party incurring them,
subject to any right to recover reasonable attorney’s fees and costs, which
shall include arbitration expenses.
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12.
Non-Disparagement. Employee
and the Company (including its officers, directors, employees or agents) agree
not to make any disparaging, derogatory, defamatory or slanderous remarks of
any
nature whatsoever at any time about the other.
13.
No Claims.
Employee
represents that he has not filed any Claim that was released in this Agreement
and that he will not do so at any time in the future; provided, however, that
this will not limit Employee from filing a Claim to enforce the terms of this
Agreement.
14.
Agreement Confidential. Employee
will keep the fact and terms of this Agreement completely confidential and
will
not disclose the existence of this Agreement or its terms, except as required
by
law or court order. Employee may, however, disclose the existence and terms
of
this Agreement with Employee’s attorney, accountant, financial advisors, and
spouse or domestic partner. Any such third persons informed of the terms of
this
Agreement will in turn be advised by Employee of this confidentiality provision
and requested to maintain it.
15.
Informed
Agreement. Employee
has read and fully understands the terms of this Agreement and its significance
and consequences. Employee acknowledges that the Company has advised him to
review the terms of this Agreement with an attorney and that Employee has either
done so or knowingly waived his right to do so. Employee further acknowledges
that this Agreement is voluntary and has not been given as a result of any
coercion.
16.
Review and Revocation.
Employee
has a period of 21 days during which to consider this Agreement prior to
signing, but may sign it in less than 21 days at Employee’s option. Employee
will have a period of seven days after signing in which to revoke this
Agreement. This Agreement will not become effective or enforceable until the
seven-day revocation period has expired. Employee may revoke this Agreement
by
delivering a written notice to Xxxx Xxxxx at 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX
00000 no later than the seventh day after signing this Agreement.
17.
Continued
Cooperation. Although
no longer employed by the Company, Employee will make himself reasonably
available upon request to answer questions that may arise from time to time
regarding matters he handled or was familiar with during his
employment.
18.
Entire Agreement. This
Agreement is the entire agreement between Employee and the Company, and it
supersedes and replaces all prior written and oral agreements between the
parties with respect to its subject matter. The Company has not made any
promises to Employee other than those included within this
Agreement. No
supplement or modification of this Agreement will be valid, unless it is made
in
writing and signed by both parties.
19.
Severability. If
any
provision or portion of this Agreement is held to be unenforceable or invalid,
the remainder of this Agreement will nevertheless continue to be enforceable
and
valid.
20.
Governing Law. This
Agreement will be governed, interpreted and enforced in accordance with the
laws
of the State of Washington without regard to its choice of law
principles.
21.
Attorneys’
Fees and Costs.
In the
event of any action or proceeding arising out of or related to this Agreement,
the substantially prevailing party shall be entitled to recover their reasonable
attorneys’ fees and costs.
PLEASE
READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
|
Employee
Signature:
________________________
Printed
Name: Xxxxxxx Xxxxxx
Chief
Information Officer
Date:____________________________
|
Onvia,
Inc.
By:
_____________________________
Xxxxxxx
X. Xxxxxxx
Chairman,
President and CEO
Date:____________________________
|
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