Employment and Noncompetition Agreement - Onvia.com Inc. and Irvine N. Alpert
ONVIA.COM, INC.
EMPLOYMENT AND NONCOMPETITION AGREEMENT
(Irvine N. Alpert)
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (this "Agreement") is being
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entered into as of February 22, 2002 ("Effective Date") by and between
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Onvia.com, Inc., a Delaware corporation ("Onvia"), and Irvine N. Alpert, an
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individual ("Employee"). Certain capitalized terms in this Agreement not
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otherwise defined are defined in Exhibit A attached hereto.
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Recitals
A. Employee is currently employed by Onvia as its Vice President, AEC
Markets.
B. Employee and Onvia previously entered into a Commission and Bonus Plan
on September 11, 2001 (the "Commission Plan"), which provides for certain
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commissions and a bonus upon achievement of certain goals set by the CEO.
C. Onvia wants to enter into this Agreement to provide additional incentive
to Employee to serve as an employee of Onvia, and to encourage Employee's
continued service with Onvia.
Agreement
In consideration of the mutual covenants and agreements contained herein,
the parties agree as follows:
1. Employment.
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1.1 Term; Duties.
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(a) Term. Employee agrees to serve as an employee of Onvia during the
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period (such period, including any extensions thereto, the "Employment Term")
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commencing as of the date of this Agreement and ending on the first anniversary
of this Agreement, and this Agreement shall be automatically extended for an
additional one year term on each subsequent anniversary unless either party
provides the other with written notice at least thirty (30) days prior to the
expiration of any such one year term. Notwithstanding the foregoing, this
Agreement may be terminated at any time pursuant to Section 2 hereof.
(b) Duties.
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(i) During Employee's employment, Employee shall serve as Vice
President, AEC Markets of Onvia and shall perform such duties and functions as
the President and COO shall reasonably determine from time to time; and in the
performance of Employee's duties, Employee shall comply with all directions
given by the President and COO to the best of Employee's abilities and in a
manner consistent with the ethical and legal performance of such duties.
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(ii) Employee agrees to serve Onvia faithfully and to the best of
Employee's ability, and to devote the substantial majority of Employee's working
time, attention and efforts to the business and affairs of Onvia. Employee
represents and warrants to Onvia that he/she is under no contractual commitments
inconsistent with Employee's obligations set forth in this Agreement. Employee
and Onvia acknowledge and agree that Employee, upon notice to Onvia, may serve
on behalf of other entities as a board member, advisor, etc. so long as it does
not, in the good faith discretion of Onvia, materially conflict with Employee's
duties and obligations under this Agreement.
1.2 Salary. In consideration of all services to be rendered by Employee to
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Onvia during the Employment Term, Onvia shall pay to Employee during the
Employment Term a minimum salary of One Hundred Eighty Thousand Dollars
($180,000) per year, payable at such times as other salaried Onvia employees
receive their regular salary payments on Onvia's regular payroll ("Annual Base
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Salary"). Onvia shall be entitled to withhold from the salary payments otherwise
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required to be made to Employee such amounts as Onvia may be required to
withhold under applicable tax laws and other applicable legal requirements.
1.3 Stock Options. Onvia will grant Employee an option to purchase shares
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of Onvia common stock on substantially the terms set forth in the stock option
grant agreement ("Option Agreement") attached hereto as Exhibit B.
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1.4 Other Benefits. During Employee's employment, Onvia shall provide to
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Employee the same benefits that Onvia makes generally available to its employees
(e.g., participation in Onvia's 401(k) plan, stock option plan, employee stock
purchase plan and cash incentive programs), subject to Employee's satisfaction
of the respective eligibility requirements for such benefits. In respect of all
such benefits, Onvia shall retain the discretion to determine the amount or
value of the benefit to Employee, if such benefit is discretionary in nature in
respect of similarly situated Onvia personnel.
1.5 Change of Control.
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(a) Acceleration of Stock Options. In lieu of the benefits provided in
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Section 12(c) of the Plan, the following provision will apply in the event of a
Change in Control (as that term is defined in the Plan):
Upon consummation of a Change in Control, 25% of the total number of
then unvested shares underlying all options granted to Employee shall
vest and become exercisable. If, within twelve (12) months after
consummation of a Change in Control, Employee is terminated without
Cause or resigns for Good Reason, then 100% of the total number of
then unvested shares underlying all options granted to Employee shall
vest and become exercisable upon such resignation or termination.
Employee waives his/her rights to benefits under Section 12(c) of the
Plan in exchange for the benefits provided in this Section 1.5(a).
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(b) Severance. If, within twelve (12) months after consummation of a
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Change in Control transaction, Employee is terminated without Cause or resigns
for Good Reason, then Employee shall be entitled to the monthly salary payments
specified in Section 1.2 above on Onvia's regular payroll and then existing
benefits under Section 1.4 above for six (6) months following the effective date
of such termination.
(c) Assumption of Obligations. If this Agreement is excluded as a
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liability upon a Change of Control transaction, Onvia shall pay to Employee the
Severance as set forth in Section 1.5(b) above, minus all applicable
withholdings and taxes.
1.6 Assignment Agreement. The effectiveness of this Agreement is
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conditioned upon Employee's execution, and delivery to an officer of Onvia, of a
Proprietary Information and Inventions Agreement in the form attached hereto as
Exhibit C.
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1.7 No Other Compensation. Employee acknowledges and agrees that he/she
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shall not be entitled to receive from Onvia, or from any Affiliate of Onvia, any
salary, bonus or other compensation or benefit of any nature (whether relating
to any period prior to the date of this Agreement or relating to any period
after the date of this Agreement), except as expressly provided in Sections 1.2,
1.3, 1.4, and 1.5 above, the Commission Plan, or as otherwise authorized by
Onvia's Board of Directors.
1.8 Policies. Employee agrees to be subject to and comply with such
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corporate policies and guidelines of Onvia as are generally applicable to Onvia
employees. In the event of any conflict between Onvia policies and this
Agreement, this Agreement shall govern.
2. Termination.
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2.1 Right to Terminate. Onvia shall have the right to terminate Employee's
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employment, and Employee may resign, with or without Cause at any time during or
after the Employment Term. Upon Onvia's termination of Employee's employment:
(a) Onvia shall have no further monetary obligation or other obligation of any
nature to Employee under Section 1 with respect to Employee's employment, except
as set forth in Section 2.2 below, and (b) Employee shall have no further
obligation to Onvia under Section 1.1. Except as expressly set forth in this
Section 2.1, the termination of Employee's employment pursuant to this Section
2.1 shall not limit or otherwise affect any of Employee's obligations under this
Agreement, all of which shall remain in full force and effect as provided
herein.
2.2 Termination.
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(a) If (i) Onvia terminates Employee's employment without Cause, or
Employee resigns for Good Reason, during the Employment Term, (ii) Employee
satisfies all of Employee's obligations relating to the termination of
Employee's employment under this Agreement (including Employee's obligations
under Section 5.1 below), (iii) Employee executes
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and delivers to Onvia a general release (reasonably satisfactory in form and
substance to Onvia) of any rights or claims that he/she may have or has ever had
against Onvia or any of Onvia's Affiliates, and (iv) Employee continues to
satisfy all of Employee's obligations under this Agreement (except for Section
1.1), then Employee shall be entitled to receive (x) the monthly salary payments
specified in Section 1.2 above on Onvia's regular payroll and then existing
benefits under Section 1.4 above for six (6) months following the effective date
of such termination, and (y) six (6) months (determined from the date of such
termination) of accelerated vesting of unvested options granted to Employee.
(b) If (i) Onvia terminates Employee with Cause and (ii) Employee
satisfies all of his/her obligations relating to the termination of his/her
employment under this Agreement (including his/her obligations under Section 5.1
below), then Employee shall be entitled to receive previously accrued and unpaid
monthly salary payments, bonuses and vacation time plus accrued, reasonable and
unreimbursed expenses which are documented and are within the scope of his/her
employment, in each case through the date of termination.
(c) If (i) Employee's employment is terminated due to Employee's
Disability, (ii) Employee satisfies all of Employee's obligations relating to
the termination of Employee's employment under this Agreement (including
Employee's obligations under Section 5.1 below), (iii) Employee executes and
delivers to Onvia a general release (reasonably satisfactory in form and
substance to Onvia) of any rights or claims that he/she may have or has ever had
against Onvia or any of Onvia's Affiliates, and (iv) Employee continues to
satisfy all of Employee's obligations under this Agreement (except for Section
1.1), then Employee shall be entitled to receive (x) previously accrued and
unpaid monthly salary payments, bonuses and vacation time plus accrued,
reasonable and unreimbursed expenses which are documented and are within the
scope of Employee's employment, in each case through the date of termination,
and (y) the monthly salary payments specified in Section 1.2 above and then
existing benefits under Section 1.4 above for ninety (90) days following the
effective date of such termination.
3. Noncompetition.
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3.1 Restriction on Competition. Employee agrees that, during the period
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commencing on the date of the Agreement and ending on the one year anniversary
of the effective date of Employee's termination (the "Noncompetition Term"),
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Employee shall not directly or indirectly, for Employee's own account or for the
account of any other Person, engage in any Competition in the Territory, or
directly or indirectly be or become an officer, director, stockholder, owner,
Affiliate, co-owner, licensor, sublicensor, licensee, sublicensee, partner,
trustee, promoter, employee, agent, representative, supplier, creditor,
consultant, advisor or manager of or to, or otherwise be or become associated
directly or indirectly with or acquire or hold any direct or indirect interest
in, any Person that engages directly or indirectly in any Competition in the
Territory; provided, however, that Employee may, without violating this Section
3, own as a passive investment less than five percent (5%) of the outstanding
shares of capital stock of a corporation which engages in Competition if
Employee is not otherwise associated directly or indirectly with such
corporation or any Affiliate of such corporation.
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3.2 Non-Solicitation of Employees. Employee agrees that, during the
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Noncompetition Term, he/she shall not directly or indirectly induce or attempt
to induce (on Employee's own behalf or on behalf of any other Person) any
employee of Onvia or any subsidiary of Onvia to leave Employee's employment with
Onvia or such subsidiary of Onvia.
3.3 Specific Performance. Employee agrees that in the event of any breach
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or threatened breach by him/her of any covenant, obligation or other provision
contained in the Agreement, each party shall be entitled (in addition to any
other remedy that may be available to it) to (i) a decree or order of specific
performance or mandamus to enforce the observance and performance of such
covenant, obligation or other provision, and (ii) an injunction restraining such
breach or threatened breach.
4. Confidential Information.
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4.1 Obligation to Keep Confidential. Employee agrees to keep all
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Confidential Information strictly and permanently confidential and, accordingly,
agrees that he/she shall not at any time (whether during or after Employee's
employment with Onvia or during or after the Noncompetition Term) directly or
indirectly, willingly and knowingly use for any purpose, or disclose or permit
to be disclosed to any Person, any Confidential Information other than as
required in the performance of Employee's duties for Onvia. Employee
acknowledges that the Confidential Information constitutes a unique and valuable
asset of Onvia acquired at great time and expense by Onvia, and that any
disclosure or other use of such Confidential Information other than for the
benefit of Onvia or an Affiliate of Onvia would be wrongful and would cause
irreparable harm to Onvia. Employee shall not at any time willingly or knowingly
take any action that would reduce the value of any of the Confidential
Information to Onvia.
5. Miscellaneous Provisions.
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5.1 Surrender of Records and Property. At such time as Employee no longer
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serves as an employee of Onvia:
(a) Employee shall deliver promptly to Onvia all records, manuals,
books, blank forms, documents, letters, memoranda, notes, notebooks, reports,
data, tables, calculations or copies thereof which are the property of Onvia or
an Affiliate of Onvia or which relate in any way to the business, products,
practices or techniques of Onvia or an Affiliate of Onvia, and all other
property, trade secrets and Confidential Information, including all documents
which in whole or in part contain any trade secrets or Confidential Information,
which are in Employee's possession or under Employee's control:
(b) Employee shall comply with Onvia's normal procedures for departing
employees, providing they are not in conflict with this Agreement or other legal
rights of Employee; and
(c) Employee shall leave Onvia's premises immediately upon Onvia's
request.
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5.2 Notices. Any notice or other communication required or permitted to be
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delivered to either party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile number set forth beneath the name of such party below (or
to such other address or facsimile number as such party shall have specified in
a written notice given to the other party hereto):
If to Employee:
Irvine N. Alpert
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Facsimile:
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If to Onvia:
Onvia.com, Inc.
1260 Mercer Street
Seattle, WA 98109
Attn: Legal Counsel
Facsimile (206) 373-8960
5.3 Severability.
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(a) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be excessively broad as to duration, activity or
subject, it shall be deemed to extend only over the maximum duration, activity
and/or subject as to which such provision shall be valid and enforceable under
applicable law. If any provision shall, for any reason, be held by a court of
competent jurisdiction to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. Such court shall have
the authority to modify or replace the invalid or unenforceable term or
provision with a valid and enforceable term or provision which most accurately
represents the parties' intention with respect to the invalid or unenforceable
term or provision.
(b) The parties intend that the covenants contained in Section 3 above
shall be construed as a series of separate covenants, one for each geographical
unit specified. Except for geographical coverage, each such separate covenant
shall be deemed identical in terms to the covenant contained in Section 3 above.
If, in any judicial proceeding, a court shall refuse to enforce any of the
separate covenants deemed included in this Agreement, then the unenforceable
covenant shall be deemed eliminated from these provisions for the purpose of
those proceedings to the extent necessary to permit the remaining separate
covenants to be enforced.
5.4 Governing Law; Venue. This Agreement shall be construed in accordance
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with, and governed in all respects by, the laws of the State of Washington
(without giving effect to principles of conflicts of laws). Any legal action or
other legal proceeding relating to this Agreement or the enforcement of any
provision of this Agreement may be brought or otherwise commenced in a state or
federal court located in the County of King in the State of Washington.
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Each party to this Agreement (a) expressly and irrevocably consents and submits
to the jurisdiction of each state and federal court located in the County of
King in the State of Washington (and all appellate courts located in the State
of Washington) in connection with any such legal proceeding; (b) agrees that
each state and federal court located in the County of King in the State of
Washington shall be deemed to be a convenient forum; and (c) agrees not to
assert (by way of motion, as a defense or otherwise), in any such legal
proceeding commenced in any state or federal court located in the County of King
in the State of Washington, any claim that such party is not subject personally
to the jurisdiction of such court, that such legal proceeding has been brought
in an inconvenient forum, that the venue of such proceeding is improper or that
this Agreement or the subject matter of this Agreement may not be enforced in or
by such court.
5.5 Waiver. No failure on the part of either party to exercise any power,
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right, privilege or remedy under this Agreement, and no delay on the part of
either party in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Neither party shall be deemed to have waived any
claim arising out of this Agreement, or any power, right, privilege or remedy
under this Agreement, unless the waiver of such claim, power, right, privilege
or remedy is expressly set forth in a written instrument duly executed and
delivered by the party to be charged; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
5.6 Captions. The captions contained in this Agreement are for convenience
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of reference only, shall not be deemed to be a part of this Agreement and shall
not be referred to in connection with the construction or interpretation of this
Agreement.
5.7 Counterparts. This Agreement may be executed in several counterparts,
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each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
5.8 Further Assurances. Each party hereto shall execute and/or cause to be
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delivered to the other party hereto such instruments and other documents and
shall take such other actions as such other party may reasonably request to
effectuate the intent and purposes of this Agreement.
5.9 Entire Agreement. This Agreement and the Commission Plan set forth the
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entire understanding of the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings between the parties relating
to the subject matter hereof and thereof.
5.10 Successors and Assigns. The Agreement shall inure to the benefit of
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and be binding on Onvia, Employee and their respective successors and assigns
(if any), however, Employee's obligations under this Agreement cannot be
assigned.
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5.11 Survival of Obligations. Except as specifically provided herein, all
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of the obligations of Employee and Onvia under the Agreement (including
Employee's obligations under Sections 3.1, 4.1, and 5.9) shall survive the
termination of Employee's employment with Onvia and the expiration of the
Noncompetition Term. Without limiting the generality of the foregoing, the
termination of Employee's employment or the expiration of the Noncompetition
Term shall not operate to relieve Employee of any obligation or liability
arising from any prior breach by Employee of any provision of the Agreement. The
termination of Employee's employment or the expiration of the Noncompetition
Term shall also not operate to relieve Onvia of any obligation or liability
arising from any prior breach by Onvia of any provision of the Agreement.
5.12 Amendment. The Agreement may not be amended, modified, altered or
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supplemented other than by means of a written instrument duly executed and
delivered by Employee and Onvia (or any successor to Onvia).
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
EMPLOYEE
By: /s/
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Print Name:
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Title:
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ONVIA.COM, INC.
By: /s/ Clayton W. Lewis
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Clayton W. Lewis, President & COO
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EXHIBIT A
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CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
Affiliate. "Affiliate" means, with respect to any specified Person, any
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other Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such specified
Person.
Cause. "Cause" means: (a) any material and willful (i) misconduct, (ii)
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fraud or (iii) bad faith on the part of Employee in the performance of
Employee's duties as an employee of Onvia; (b) the conviction of Employee of, or
the entry by Employee of a plea of guilty or no contest to, any felony; (c) the
material breach by Employee of any provision in this Agreement or in the
Proprietary Invention Assignment Agreement between the Company and Employee, if
such breach is unremedied within thirty (30) days after Employee receives
written notice of such breach; (d) the failure of Employee to comply with any
lawful order or instruction of Onvia's Board of Directors or its Chief Executive
Officer within five (5) days after written notice of such failure; or (e)
repeated (where prior violations have been brought to Employee's attention) and
serious violations of the published and written rules or policies of Onvia as
such may be applicable to an individual in Employee's circumstances.
Competition. A Person shall be deemed to be engaged in "Competition" if:
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(a) such Person is engaged directly or indirectly in the design, development,
manufacture, assembly, promotion, lease, financing, sale, rental, distribution,
resale, installation, support, maintenance, repair, refurbishment, licensing or
sublicensing of any Product or in the promotion or performance of any Service;
or (b) such Person offers or attempts to design, develop, manufacture, assemble,
promote, lease, finance, sell, rent, distribute, resell, install, support,
maintain, repair, refurbish, license or sublicense any Product or promote or
perform any Service.
Confidential Information. "Confidential Information" means any non-public
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information (whether or not in written form and whether or not expressly
designated as confidential) relating directly or indirectly to Onvia or any of
Onvia's subsidiaries or other Affiliates or relating to the business,
operations, financial affairs, performance, assets, technology, processes,
products, contracts, customers, licensees, sublicensees, suppliers, personnel,
plans or prospects of Onvia or any of Onvia's subsidiaries or other Affiliates,
including any such information consisting of or otherwise relating directly or
indirectly to trade secrets, know-how, technology, computer software, computer
programs, designs, drawings, processes, license or sublicense arrangements,
formulae, proposals, customer lists or preferences, pricing lists, referral
sources, marketing or sales techniques or plans, operations manuals, service
manuals, financial information, projections, lists of suppliers, lists of
distributors or sources of supply; provided, however, that "Confidential
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Information" shall not be deemed to include information which, at the time of
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initial disclosure to the employee, was part of or, without violation of the
Agreement, becomes part of, the public knowledge or literature and is readily
accessible to third parties; which is hereafter rightfully furnished by a third
party without restriction as to use; which was acquired prior to the receipt of
information from Onvia or any of Onvia's subsidiaries or other Affiliates and
without restriction as to use or disclosure; which is required to be disclosed
pursuant to law, provided reasonable efforts are used to give reasonable notice
of such required disclosure to Onvia; or which is disclosed with the prior
written consent of Onvia.
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Disability. "Disability" means the death of Employee or the incapacity or
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inability of Employee, whether due to accident, sickness or otherwise, as
determined by a medical doctor acceptable to the President and CEO of Onvia and
confirmed in writing by such doctor, to perform the essential functions of
Employee's position under this Agreement, with or without reasonable
accommodation (provided that no accommodation that imposes undue hardship on
Onvia will be required) for an aggregate of ninety (90) days during any period
of one hundred eighty (180) consecutive days or such longer period as may be
required under applicable disability law.
Good Reason. "Good Reason" shall mean (i) Onvia's material breach of the
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terms of this Agreement; (ii) a material reduction of Employee's salary, or a
material reduction in the Employee's total compensation hereunder; or (iii) a
requirement that the Employee be based at any office or location more than
thirty (30) miles from Employee's primary work location prior to the Effective
Date of this Agreement.
Liquidation. "Liquidation" shall mean with respect to winding up the
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affairs of Onvia, by voluntary or involuntary proceedings, the process of
reducing assets to cash, discharging liabilities and dividing surplus or loss.
Upon a Liquidation of Onvia, Employee's employment with Onvia will be considered
terminated without Cause.
Person. "Person" means any (a) individual; (b) corporation (including any
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non-profit corporation, general partnership, limited partnership, limited
liability partnership, joint venture, estate, trust, cooperative, foundation,
society, political party, union, company (including any limited liability
company or joint stock company), firm or other enterprise, association,
organization or entity; or (c) governmental body or authority.
Product. "Product" means (a) any present or future product or service
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offering of Onvia in production or design or (b) any product that is the same
as, or that is functionally similar to or competes in any respect with, any
product referred to in clause (a).
Service. "Service" means any: (a) service (including any repair service,
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programming service, upgrade service, refurbishment service, installation
service, training service, support service, consultation service or maintenance
service) relating directly or indirectly to, or performed with respect to, any
Product, or (b) service that is the same as, or that is functionally similar to
or competes in any respect with, any service referred to in clause (a).
Territory. "Territory" means any of the following geographic areas in
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which: (a) any Product has been, or has been offered to be, designed, developed,
manufactured, assembled, promoted, leased, financed, sold, rented, distributed,
resold, installed, repaired, refurbished, licensed or sublicensed by Onvia or
any Affiliate of Onvia at any time on or prior to the date of the Agreement; (b)
Onvia or any Affiliate of Onvia has otherwise conducted, carried on or engaged
in any business or activity at any time on or prior to the date of this
Agreement; (c)
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Onvia or any Affiliate of Onvia has planned or proposed to design, develop,
manufacture, assemble, promote, lease, finance, sell, rent, distribute, resell,
install, repair, refurbish, license or sublicense, or to offer to design,
develop, manufacture, assemble, promote, lease, finance, sale, rent, distribute,
resell, install, repair, refurbish, license or sublicense, any Product; (d)
Onvia or any Affiliate of Onvia has planned or proposed to promote or perform,
or to offer to promote or perform, any Service at any time on or prior to the
date of this Agreement; (e) Onvia or any Affiliate of Onvia designs, develops,
manufactures, assembles, promotes, leases, finances, sells, rents, distributes,
resells, installs, repairs, refurbishes, licenses or sublicenses, or offers to
lease, finance, sell, rent, distribute, resell, install, repair, refurbish,
license or sublicense, any Product at any time during the Noncompetition Term;
(f) Onvia or any Affiliate of Onvia promotes, performs or offers to promote or
perform any Service at any time during the Noncompetition Term; or (g) Onvia or
any Affiliate of Onvia otherwise conducts, carries on or engages in any business
or activity at any time during the Noncompetition Term in:
(i) any country or similar political subdivision of any state,
territory or possession of the United States or any province or territory of
Canada or of any state or territory of Mexico (including each of the counties in
the state of California);
(ii) any state, territory or possession of the United States;
(iii) any province or territory of Canada;
(iv) any state or territory of Mexico; or
(v) the European Union, Israel, Japan, Singapore, South Korea, Taiwan
or Hong Kong.
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EXHIBIT B
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ONVIA.COM, INC.
AMENDED AND RESTATED 1999 STOCK OPTION GRANT
NOTICE OF STOCK OPTION GRANT
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Irvine N. Alpert
7040 94th Ave SE
Mercer Island, WA 98040
You have been granted an option to purchase Common Stock of Onvia.com,
Inc., a Delaware corporation, (the "Company") as follows:
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<TABLE>
<S> <C>
Board Approval Date: February 22, 2002
Date of Grant (Board
Approval Date): February 22, 2002
Grant Number: 00001568
Exercise Price Per Share: $0.41
Total Number of Shares Granted: 169,000
Total Exercise Price: $69,290.00
Type of Option: Incentive Stock Option (ISO)
Vesting Commencement Date: February 22, 2002
Expiration Date: February 22, 2012
Vesting/Exercise Schedule: So long as your employment or consulting relationship with
the Company continues, the Shares underlying this Option
shall vest and become exercisable in accordance with the
following schedule: 1/48 of the total number of Shares
subject to the Option shall vest and become exercisable on
each one (1) month anniversary of the Vesting Commencement
Date until all such Shares are completely vested.
Acceleration: Option shall not be accelerated in the event of a Change in
Control for one (1) year from the Vesting Commencement Date,
after which time, the Option
</TABLE>
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<TABLE>
<S> <C>
granted under this Notice shall be subject to acceleration
under Section 1.5(a) of that certain Employment and
Noncompetition Agreement of even date herewith between
Optionee and the Company.
Termination Period: Option may be exercised for ninety (90) days after
termination of employment or consulting relationship (but in
no event later than the Expiration Date). Optionee is
responsible for keeping track of these exercise periods
following termination for any reason of his or her service
relationship with the Company. The Company will not provide
further notice of such periods.
Transferability: This Option may not be transferred.
</TABLE>
By your signature and the signature of the Company's representative below,
you and the Company agree that this option is granted under and governed by the
terms and conditions of the Onvia.com, Inc. Amended and Restated 1999 Stock
Option Plan (the "Plan").
In addition, you agree and acknowledge that your rights to any Shares
underlying the Option will be earned only as you provide services to the Company
over time, that the grant of the Option is not as consideration for services you
rendered to the Company prior to your Vesting Commencement Date, and that
nothing in this Notice or the attached documents confers upon you any right to
continue your employment or consulting relationship with the Company for any
period of time, nor does it interfere in any way with your right or the
Company's right to terminate that relationship at any time, for any reason, with
or without cause.
IRVINE N. ALPERT ONVIA.COM, INC.
/s/ By: /s/ Clayton W. Lewis
---------------------------------- -------------------------------
Signature Clayton W. Lewis
President & COO
February 22, 2002
In consideration of the Company's granting his or her spouse the right to
purchase Shares as set forth in the Plan and this Notice, the undersigned hereby
agrees to be irrevocably bound by the terms and conditions of the Plan and this
Notice and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Notice.
-----------------------------------
Spouse of Optionee
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Commission and Bonus Plan
Commission
Irvine Alpert will receive as commission, a percentage of earned revenue
("earned Revenue" means revenue recognized for accounting purposes), which is
paid on the 15th of the month for the previous month's billings. In the event of
nonpayment by your client(s), for which commissions have already been paid to
you, you agree and authorize the Company to charge back such commissions against
future earned commissions. You agree to pay the Company for any charge backs
against future commissions earned, which remain due and owing to the company
when your employment relationship ends for any reason. The 12-month period for
calculating your commission percentage shall be from January 1 to December 31 of
each year.
Commission Percentage Earned Revenue in 12 Month Period
--------------------- ---------------------------------
10% $0 to $1,500,000
12.5% $1,500,001 to $2,000,000
15% $2,000,0001 +
Quarterly Bonus
In addition, you will receive the following bonuses, on a quarterly basis, for
the achievement of the goals described in the table below. Determinations of
achievement of goals shall be within the sole discretion of the Company's Vice
President of the Onvia Marketing Group. This(ese) bonus(es) shall be paid within
60 days of the end of each quarter.
Amount of Bonus Achievement
--------------- -----------
$1,000 Personal Sales Goals for the Quarter
$1,000 Team Sales Goals for the Quarter
Commission Period
If your employment with the Company ends, you shall receive all commissions as
defined herein, up to the last business day of employment.
Compensation Revisions
Onvia reserves the right to review and make changes to Employee's base salary
and commission and quarterly bonus structure at any time.
Charge Back Against Final Paycheck
If your employment with the Company ends, you authorize the Company to charge
back against your final paycheck any amounts owed by you.
Confidentiality
The terms of this commission plan are confidential and shall be disclosed only
to persons having a need to know as determined in advance by the company.
By signing below, you acknowledge receipt of this commission plan and your
understanding this plan supersedes any prior commission plan. Should you have
any questions regarding this commission plan, please contact Clayton Lewis.