SEPARATION AND RELEASE AGREEMENT (Peter W. Noble)
Exhibit
10.11
(▇▇▇▇▇
▇. ▇▇▇▇▇)
This
Separation and Release Agreement (“Agreement”) is made and entered into by and
between ▇▇▇▇▇ ▇. ▇▇▇▇▇ (“Employee”) and Onvia, Inc. (the
“Company”).
Both
parties wish to set forth the terms and conditions of Employee’s departure from
Employee’s employment with the Company. In consideration of the mutual
promises contained in this Agreement, the parties agree as follows:
1.
Separation
Date. Employee’s
employment with the Company is ending effective
May 16, 2007 (the
“Separation Date”). Employee will be paid Employee’s 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 ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) as
a
severance payment (“Severance Payment”). The Severance Payment will be
subject to all lawful or required deductions and will be paid in a lump sum,
following the same direct deposit instructions authorized by Employee for
payroll purposes, if applicable. 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 any earned but unused paid time off (approximately
176
hours), less all lawful and required deductions.
4.
Stock Options.
As
of the Separation Date, Employee has 73,334
fully
vested and exercisable stock options granted under the Onvia, Inc. Amended
and
Restated 1999 Stock Option Plan (the “1999 Plan”). Employee acknowledges that as
a consequence of Employee’s termination as an Onvia employee on the Separation
Date, and pursuant to the terms of each stock option that has been granted
to
Employee under the 1999 Plan, Employee will have three (3) months from the
Separation Date (until August 16, 2007) to exercise each stock option to the
extent each stock option was vested on the Separation Date. Nonvested stock
options will be forfeited upon the Separation Date.
5.
The
Company’s 401(k) Plan.
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 the Company’s 401(k) Plan. Severance payments
payable under this Agreement are not included for the purpose of calculating
401(k) contributions made on Employee’s behalf. 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. The
Company will pay Employee a total sum of TWO
THOUSAND SEVENTY FIVE DOLLARS AND SEVENTY SIX CENTS ($2,075.76),
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
consideration of 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, “Claims”), which Employee may have on Employee’s behalf,
known, unknown, or later discovered which arose prior to the date Employee
signs
this Agreement,
except as set forth below..
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
1
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 separate from employment its
employees.
This shall not apply to any claims by or rights of employee (a) for compensation
for vested benefits arising under any Company employee benefit plan, in
accordance with the terms of such plans;(b) arising under any company insurance
plan or policy;(c) with respect to any obligation of the Company under this
Agreement;(d) for indemnification or defense, including attorney’s fees and
cost, by the Company, to the extent such rights may arise under law, or be
provided under the Company’s Articles, Bylaws or otherwise, with respect
to Employee’s acts or omissions while employed by the Company.
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 Employee’s 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 Onvia (“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/Equipment.
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. Employee will also
promptly deliver to the Company all property (e.g., phone, blackberry, laptop,
etc.) provided by the Company.
9.3.
Injunctive
Relief.
Employee acknowledges and agrees that Onvia has the right to obtain an
injunction to restrain Employee from disclosing Confidential Information and
is
not required to post bond or other security.
9.4
Non-Compete/Non-Solicitation
and Other Obligations.
Employee specifically reaffirms that Employee will continue to abide by the
provisions of 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 agreement(s) remain in full force and effect, and nothing in
this
Agreement is intended to supersede those agreements(s).
10.
Arbitration.
10.1.
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 either King County, Washington, the county and state for the
Company’s facility to which Employee was last assigned, or other mutually agreed
upon venue, 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.
10.2.
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.
10.3.
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.
10.4.
Expenses.
Each party will share equally the expenses of the arbitrator and other
arbitration expenses. Attorney 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.
2
11.
Non-Disparagement. Employee
agrees that Employee will not make any disparaging or derogatory remarks about
the Company or any of its officers, directors, employees or agents at any
time,
and
that the Company will not make any disparaging or derogatory remarks about
Employee at any time.
12.
No Claims.
Employee represents that Employee has not filed any Claim that was released
in
this Agreement and that Employee 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.
13.
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.
14.
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
Employee to review the terms of this Agreement with an attorney and that
Employee has either done so or knowingly waived Employee’s right to do so.
Employee further acknowledges that this Agreement is voluntary and has not
been
given as a result of any coercion.
15.
Review and Revocation.
Employee has a period of twenty one (21) days during which to consider this
Agreement prior to signing, but may sign it in less than 21 days at Employee’s
option (“Review Period”). Employee will have a period of seven (7) 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 ▇▇▇▇ ▇▇▇▇▇ at Onvia,
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ no later than the seventh day after
signing this Agreement.
16.
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.
17.
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.
18.
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.
19.
Attorneys’ Fees and Costs. In
the
event of any action or proceeding arising out of or related to the Agreement,
the prevailing party shall be entitled to recovery of their reasonable
attorney’s fees and costs.
PLEASE
READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
|
Employee
Signature:
________________________
Printed
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior
VP of Sales
Date:____________________________
|
Onvia,
Inc.
By:
_____________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Chairman,
President and CEO
Date:____________________________
|
3