Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement"), dated as
of December 17, 2007 (the "Effective Date"), is by and between SPSS Inc., a
Delaware corporation having its principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SPSS" or the "Company"), and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (the "Employee").
WHEREAS, the Company and the Employee are parties to that certain Amended
and Restated Employment Agreement dated August 16, 2004 (the "Original
Agreement"); and
WHEREAS, it is now desirable to amend the Original Agreement to reflect
changes required to conform to section 409A of the Internal Revenue Code of
1986, as amended (the "Code"), to make certain other technical and conforming
changes, and to make certain other agreed upon changes;
NOW THEREFORE, in consideration of the foregoing, the mutual covenants and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agrees as follows:
1. Employment. The Employee shall continue to be employed by SPSS as
Executive Vice President, Corporate Operations, Chief Financial Officer and
Secretary for the Term of Employment (as defined in Section 4 below), and on the
terms and conditions set out herein. In each of these capacities, the Employee
shall report directly to the President and Chief Executive Officer of SPSS.
2. Employment Services. The Employee shall be responsible for the
management and direction of all aspects of the Company's financing, accounting,
financial reporting and financial information systems for carrying out corporate
policy as established by the Board of Directors of SPSS (the "Board"). These
duties shall include, but not be limited to, oversight and management of
financial and strategic planning, budgeting and forecasting; compliance with all
applicable accounting, securities and other government regulations; initiating
internal audits and financial controls; establishing and managing credit;
establishment and maintenance of receivable and payable systems; and development
and maintenance of internal systems to track, analyze and control costs related
to the business of SPSS.
The Employee shall also be responsible for the management and direction of
all aspects of the Company's legal department, the corporate secretary function,
human resources, information technology and the Company's corporate
administration, including without limitation, its facilities, risk management
department; and product fulfillment department.
In addition, the Employee shall faithfully perform other executive and
managerial duties, or special assignments, as may be delegated to the Employee
by or on behalf of the Board, the Audit Committee or the Chief Executive Officer
of SPSS. During the Term of Employment, the Employee shall work for SPSS and its
Affiliates (as hereinafter defined) and shall devote substantially all of his
business efforts and time to fulfill the duties of his employment.
For purposes of this Agreement, the term "Affiliate" as used herein shall
mean SPSS, any other corporation owned or controlled by SPSS, directly or
indirectly, and any subsidiary of SPSS.
3. Compensation.
(a) Base Salary. In full consideration for aforementioned services and
subject to the due performance thereof, the Employee shall receive an annual
salary of $420,000 (payable semi-monthly in arrears) during the Term of
Employment.
(b) Incentive Payments. The Employee shall be eligible to participate in
the Executive Incentive Cash Compensation program for executive officers of SPSS
and to receive incentive cash payments in connection therewith. The Employee's
annual incentive target shall be no less than the greater of $260,000 or 40% of
his base pay; provided, however, that the actual payout will depend upon SPSS
company performance measured against defined metrics. Incentive cash payments
shall be calculated quarterly and paid approximately eight (8) weeks after the
close of each calendar quarter; provided, however, that in no event shall the
bonus for any portion of a year be paid later than March 15 of the year
following the year in which it is earned.
(c) Reviews. The Employee shall be reviewed by the Compensation Committee
of the Board (the "Compensation Committee") with regard to salary, bonus and
incentive payments on no less frequent than an annual basis and/or in
conjunction with the Compensation Committee's review of the Company's Chief
Executive Officer and/or other executive officers. Any increase in salary or the
award of a bonus or incentive payment shall be made in the sole discretion of
the Compensation Committee, taking into account, at the sole discretion of the
Compensation Committee, whether the Employee has attained the applicable
performance goals, financial and other, established for the Employee by the
Compensation Committee or the Board.
(d) Equity Awards. The Employee shall, subject to the approval of the
Compensation Committee, participate in the equity incentive program available to
other executive officers of SPSS. For the avoidance of doubt, no equity awards
will actually be issued to the Employee unless and until approval of the
specific grant and issuance has been obtained from the Compensation Committee.
(e) Benefits. The Employee shall be entitled to:
(i) reimbursement from SPSS of reasonable and necessary business
expenses incurred by the Employee in connection with his
performance of services under this Agreement so long as such
expenses are consistent with the Company's expense reimbursement
policy/practice (which is incorporated into this Agreement by
reference), upon the Employee's presentation from time to time of
an itemized account of such expenses by the Employee; provided,
however, that, the reimbursement of any such expenses that are
taxable to the Employee shall be made on or before the last day
of the year following the year in which the expense was incurred
and the amount of
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the expenses eligible for reimbursement during one year will not
affect the amount of expenses eligible for reimbursement in any
other year;
(ii) five (5) weeks of paid vacation time during each year of
employment;
(iii) ten (10) days of sick leave during each year of employment;
(iv) the holidays observed by SPSS in the United States; and
(v) receive, enjoy, and/or participate as applicable in the other
benefits customarily received by executive officers and employees
of SPSS; provided, however, that nothing herein shall require
SPSS to maintain the benefits currently provided to SPSS
employees.
4. Term of Employment. The Employee's term of employment by SPSS (the "Term
of Employment") shall commence on the date hereof and shall continue through
Date of Termination as defined below. The date on which the Term of Employment
ends pursuant to Section 5 below shall be referred to as the "Date of
Termination." Except as specifically agreed to in writing by the parties, all
provisions of this Agreement shall remain in full force and effect during the
entire Term of Employment.
5. Termination.
(a) The Term of Employment shall be terminated when the Employee's
employment with the Company and its Affiliates terminates for any of the
following reasons:
(i) by mutual written agreement of SPSS and the Employee, effective
as mutually agreed;
(ii) by SPSS with Good Cause (as defined hereunder), effective
immediately (subject, if applicable, to the cure period provided
under Section 5(b)(i));
(iii) by the Employee for Good Reason (as defined hereunder),
effective as specified in an advance written notice by the
Employee to the Company; provided, however, that the Employee's
termination shall not be treated as a termination by the Employee
for Good Reason unless (A) within ninety (90) days after the
initial existence of the applicable condition that is purported
to give rise to a basis for a Good Reason termination, the
Employee provides written notice of the existence of such
condition to the Company, (B) such condition is not cured within
thirty (30) days after the date of the written notice from the
Employee to the Company, and (C) the Employee terminates
employment no later than sixty (60) days after the expiration of
the applicable cure period;
(iv) by SPSS without Good Cause, effective as specified in an advance
written notice by the Company to the Employee but in no event
later than sixty (60) days after the date of the written notice
(the "SPSS Notice Period");
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(v) by the Employee without Good Reason, effective on the earlier of
a mutually agreed Date of Termination or sixty (60) days after
written notice to SPSS (the "Employee Notice Period");
(vi) by reason of the Employee's death;
(vii) by reason of the Employee's Disability (as defined herein); or
(viii) by the Employee for any reason (or no reason) effective within
the thirty (30) day period beginning on the first anniversary of
the Change of Control Effective Date (the "Special Termination
Provision").
The SPSS Notice Period and the Employee Notice Period are collectively
referred to herein as the "Notice Period".
(b) For purposes of this Agreement, "Good Cause" is defined as:
(i) the Employee's willful and continued failure to substantially
perform his duties for the Company (other than any such failure
resulting from the Employee's Disability) which is not cured
within a reasonable period (not exceeding thirty (30) days)
following the date on which the Company provides to the Employee
written notice which specifies the condition or behavior that
forms the Company's basis for a Good Cause termination pursuant
to this Section 5(b)(i);
(ii) the Employee's willful engagement in conduct which is
demonstrably and materially injurious to the Company or its
reputation, monetarily or otherwise;
(iii) the Employee's engagement in fraud, theft or embezzlement;
(iv) the Employee's conviction of, or the Employee's entry of a plea
of nolo contendre to, a felony (determined under applicable state
law); or
(v) the Employee's illegal use of a controlled substance.
For purposes of Sections 5(b)(i) and (ii) above under this definition of
Good Cause, no act, or failure to act, on the part of the Employee shall be
deemed "willful" unless done, or omitted to be done, by the Employee not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company.
(c) For purposes of this Agreement, "Good Reason" is defined as any of the
following conditions:
(i) a material diminution of the Employee's job assignment, duties,
responsibilities or reporting relationships which is inconsistent
with his initial position hereunder, or any later agreed-upon
amendment of that position;
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(ii) a material reduction in the Employee's base compensation or
annual incentive cash target;
(iii) a material breach of the terms of this Agreement by SPSS; and
(iv) a change in the Employee's principal assigned location of
employment by more than fifty (50) miles from the Employee's
principal assigned location of employment on the Effective Date,
which change in assigned location has been determined by the
parties to constitute a material change in the geographic
location at which the Employee is required to provide his duties.
(d) For purposes of this Agreement, "Disability" means that the Employee
has suffered a disability such that the Employee is physically or mentally
unable to substantially perform the duties required of him under this Agreement
for a period of six (6) consecutive months or more.
(e) If this Agreement is terminated either by SPSS for Good Cause pursuant
to Section 5(a)(ii) or by the Employee without Good Reason pursuant to Section
5(a)(v) above, SPSS will:
(i) pay to the Employee any earned but unpaid base salary, any other
earned but unpaid compensation plus any earned (as described in
Section 5(j) below) but unpaid incentive cash award as of the
Date of Termination;
(ii) pay to the Employee any accrued, unpaid and unused vacation pay
as of the Date of Termination; and
(iii) reimburse the Employee for any business expenses properly
incurred by the Employee pursuant to Section 3(e)(i) above and
unreimbursed as of the Date of Termination.
All payments to be made pursuant to this Section 5(e) shall be paid
within 15 days following the Date of Termination.
(f) If this Agreement is terminated either by the Employee for Good Reason
pursuant to Section 5(a)(iii) above or by SPSS without Good Cause pursuant to
Section 5(a)(iv) above and if the Date of Termination does not occur under
circumstances described in Section 5(h)(ii) hereof, SPSS will pay and/or provide
(as applicable) to the Employee (except as otherwise provided in Section 7 of
this Agreement):
(i) the full amount of the salary and benefits earned by the Employee
during the Notice Period and unpaid as of the Date of
Termination, if applicable;
(ii) any earned but unpaid base salary, any other earned but unpaid
compensation plus any earned (as described in Section 5(j) below)
but unpaid incentive cash award as of the Date of Termination;
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(iii) any accrued, unpaid and unused vacation pay as of the Date of
Termination;
(iv) any business expenses properly incurred by the Employee pursuant
to Section 3(e)(i) above and unreimbursed as of the Date of
Termination;
(v) a lump sum cash payment equal to the sum of:
(A) eighteen (18) months of the Employee's monthly base salary
(annual base salary divided by twelve (12)) in effect at the
Date of Termination; and
(B) the product of (I) six (6) multiplied by (II) the quotient
of (x) the aggregate incentive cash payments that the
Employee received for the eight (8) full fiscal quarters
ending immediately prior to the Date of Termination
(determined after giving effect to the provisions of Section
5(f)(ii)), divided by (y) eight (8);
(vi) to the extent the Employee was participating in the Company's
group health plans as of the Date of Termination:
(A) for the Employee and his dependents who were covered under
the Company's group health plans as of the Date of
Termination, continuing coverage under the group health
plans at the Company's cost and on a non-taxable basis for
twenty four (24) months following the Date of Termination;
and
(B) for the Employee and his dependents who were covered under
the Company's group health plans throughout the twenty four
(24) month period described in clause (A) above, continuing
coverage under the group health plans at the Employee's full
cost (determined as the applicable premium charged for COBRA
for the applicable level of coverage under the Company's
group health plan), for up to twenty four (24) months;
provided, however, that the benefits described in clause (A)
and/or (B) above shall terminate as of the first day on which the
Employee becomes employed by another employer and becomes
eligible for benefits (or, in the case of benefits under clause
(B), if earlier, the date on which the Employee fails to pay the
full cost of the benefits), all coverage under clauses (A) and
(B) shall be considered part of, and not in addition to, any
coverage required under COBRA (or applicable state law), and for
periods after the termination of benefits due to other
employment, the Employee (and his dependents) shall have the
right to any remaining period of coverage under the Company's
group medical plans to the extent and in accordance with the
terms of COBRA (or applicable state law);
(vii) in the event that the Date of Termination occurs before the date
on which any outstanding equity awards (or portion thereof)
previously granted by
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SPSS to the Employee would have otherwise vested (each, a
"Vesting Date"), immediate vesting will occur with respect to all
then yet unvested equity awards (or portions thereof) that would
have vested had the Employee been employed with the Company as of
the relevant Vesting Date and, to the extent applicable, all such
equity awards shall be deemed to be exercised in full upon the
Date of Termination by means of a cashless exercise;
(viii) professional outplacement services, but not to exceed a term of
twelve (12) months, at a level customary for an executive
officer, to be provided by a firm mutually acceptable to SPSS and
the Employee;
(ix) continuation of professional dues and subscriptions otherwise
paid by SPSS prior to the Date of Termination for a period of
eighteen (18) months following the Termination Date and, for a
period of ninety (90) days following the Date of Termination,
continued use of a mobile telephone provided for and paid by the
Company, access to the Employee's office telephone number and
voice mailbox that exist at the Date of Termination, access to
and use of the Employee's personal Company email address and
access to and use of the Employee's personal Company electronic
equipment including, without limitation, computer and wireless
hand-held phone and email device; provided, however, that the
aggregate value of the benefits provided under this Section
5(f)(ix) shall not exceed the applicable dollar limit under
section 402(g)(1) of the Code for the year in which the Date of
Termination occurs; and
(x) acceptable employment references, as reasonably requested by the
Employee, which employment references shall include information
regarding the Employee's dates of employment with SPSS, job
title, pay rate and any such additional information as SPSS and
the Employee may agree to at the time such references are
requested and, for the avoidance of doubt, SPSS shall in all
instances act in good faith to avoid negative comments regarding
the Employee.
If this Agreement is terminated pursuant to this Section 5(f) and, at such
time, SPSS is unable to provide to the Employee the benefits set forth in
Section 5(f)(vi) above, SPSS shall take all actions reasonably necessary to
provide the Employee with the functional equivalent of the benefits set forth in
Section 5(f)(vi). SPSS and the Employee agree and acknowledge that the
"functional equivalent" of the benefits set forth in Section 5(f)(vi) may be
provided in either of the following manners: (A) by SPSS's benefits provider in
accordance with the terms of SPSS's employee benefit plans; or (B) by an
agreed-upon lump-sum payment by SPSS to the Employee, which payment shall be
intended to compensate the Employee for the benefits set forth in Section
5(f)(vi).
All payments to be made pursuant to this Section 5(f) shall be paid within
fifteen (15) days following the Date of Termination.
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(g) If the Agreement is terminated due to the death of the Employee or the
Disability of the Employee, SPSS will pay to the Employee (or, in the event of
his death, his beneficiary) the following amounts:
(i) any earned but unpaid base salary, any other earned but unpaid
compensation plus any earned (as described in Section 5(j) below)
but unpaid incentive cash award as of the Date of Termination;
(ii) any accrued, unpaid and unused vacation pay as of the Date of
Termination; and
(iii) any business expenses properly incurred by the Employee pursuant
to Section 3(e)(i) above and unreimbursed as of the Date of
Termination.
If the Employee has not designated a beneficiary (or the beneficiary does
not survive the Employee), any payments on account of death will be paid to the
estate of the Employee. All payments to be made pursuant to this Section 5(g)
shall be paid within 15 days following the Date of Termination.
(h) The following shall apply in the event of a Change of Control:
(i) As of the Change of Control Effective Date (as defined herein)
and without regard to whether the Employee's employment
terminates as of the date of the Change of Control:
(A) all of the Employee's stock options (vested and unvested)
granted by SPSS prior to the Change of Control Effective
Date (as defined herein) (I) shall accelerate and shall be
deemed to be exercised in full upon the Change of Control
Effective Date by means of a cashless exercise and (II) if
applicable, with regard to the underlying stock, shall be
exchanged, on the Change of Control Effective Date, for a
proportionate share of any consideration to be paid to the
shareholders generally in connection with the Change of
Control;
(B) all of the Employee's restricted stock units (vested and
unvested) granted by SPSS prior to the Change of Control
Effective Date (I) shall accelerate and be deemed to be
fully vested upon the Change of Control Effective Date and
(II) if applicable, with regard to the underlying stock,
shall be exchanged, on the Change of Control Effective Date,
for a proportionate share of any consideration to be paid to
the shareholders generally in connection with the Change of
Control;
(C) all restrictions on transferability of restricted stock held
by the Employee on the Change of Control Effective Date
shall accelerate and shall be deemed to have terminated
immediately prior to the Change of Control Effective Date,
and, if applicable, such restricted stock shall be
exchanged, on the Change of
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Control Effective Date, for a proportionate share of any
consideration to be paid to the shareholders generally in
connection with the Change of Control; and
(D) all of the stock appreciation rights (vested and unvested)
granted by SPSS prior to the Change of Control Effective
Date (I) shall accelerate, shall be deemed to be exercised
in full upon the Change of Control Effective Date and the
value thereof shall be exchanged for SPSS stock at the
market value of such stock immediately prior to the Change
of Control Effective Date and (II) if applicable, with
regard to the underlying stock, shall be exchanged, on the
Change of Control Effective Date, for a proportionate share
of any consideration to be paid to the shareholders
generally in connection with the Change of Control.
If any of the payments set forth in this Section 5(h)(i) would be
subject to section 409A of the Code, payments on the Change of
Control Effective Date shall be permitted only if the Change of
Control is a change in control event as defined in section 409A
and applicable regulations issued thereunder and only if payments
would be permitted to the Employee as a result of the change in
control event as a service provider to the relevant corporation
undergoing the applicable change in control event. If payments
would not be permitted under the foregoing provisions, all
vesting provisions and accelerated transfer provisions shall
continue to apply but any payments will not be accelerated and
shall instead be made as of the original payment date as
determined under the applicable award.
(ii) If this Agreement is terminated (y) either by the Employee for
Good Reason pursuant to Section 5(a)(iii) above or by SPSS
without Good Cause pursuant to Section 5(a)(iv) above and if the
Date of Termination occurs on or within two (2) years following
the Change of Control Effective Date, or (z) by the Employee
pursuant to the Special Termination Provision of Section
5(a)(viii) above, SPSS will pay and/or provide (as applicable) to
the Employee (except as otherwise provided in Section 7 of this
Agreement) the payments and benefits described in Section 5(f);
provided, however, that the Employee shall not be entitled to the
payment described in Section 5(f)(v) but shall instead be
entitled to a lump sum cash payment equal to the sum of:
(A) twenty four (24) months of the Employee's monthly base
salary (annual base salary divided by twelve (12)) in effect
at the Date of Termination; and
(B) the product of (i) eight (8) multiplied by (ii) the quotient
of (I) the aggregate incentive cash payments that the
Employee received for the eight full fiscal quarters ending
immediately prior to the Date of Termination (determined
after giving effect to the provisions of Section 5(f)(ii)),
divided by (II) eight (8).
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(iii) For purposes of this Agreement, the term "Change of Control"
shall mean any one or more of the following:
(A) the accumulation, by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) of thirty three percent (33%) or more of the then
outstanding common stock of SPSS;
(B) a merger or consolidation of SPSS in which SPSS does not
survive as an independent public company;
(C) a sale of all or substantially all of the assets of SPSS;
(D) a triggering event under that certain Amended and Restated
Rights Agreement, dated as of August 31, 2004, by and
between SPSS and Computershare Investor Services, LLC or any
amendment, restatement or replacement thereof;
(E) a liquidation or dissolution of SPSS; or
(F) a change in the composition of the Board not previously
endorsed by the Board existing as of the Effective Date or
the directors' endorsed successors, as a result of which
fewer than a majority of the directors are Incumbent
Directors ("Incumbent Directors" are directors who either
(I) are directors of SPSS as of the Effective Date, or (II)
are nominated for election to the Board by the Nominating
and Corporate Governance Committee and endorsed by the Board
existing as of the Effective Date or the directors' endorsed
successors).
Notwithstanding the foregoing, the following acquisitions shall not
constitute a Change of Control for the purposes of this Agreement: (x)
any acquisitions of common stock or securities convertible into common
stock directly from SPSS, or (y) any acquisition of common stock or
securities convertible into common stock by any employee benefit plan
(or related trust) sponsored or maintained by SPSS. The term "Change
of Control Effective Date," as used herein in connection with a Change
of Control, shall mean the date on which a Change of Control becomes
effective.
(i) Notwithstanding any other provision of this Agreement to the contrary,
if any payment hereunder is subject to section 409A and if such payment is to be
paid on account of the Employee's separation from service (within the meaning of
section 409A of the Code), if the Employee is a specified employee (within the
meaning of section 409A(a)(2)(B) of the Code), and if any such payment is
required to be made prior to the first day of the seventh month following the
Employee's separation from service, such payment shall be delayed until the
first day of the seventh month following the Employee's separation from service.
To the extent that any payments or benefits under this Agreement are subject to
section 409A of the Code and are paid or provided on account of the termination
of the Term of Employment, the determination as
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to whether the Employee has had a termination of employment (or separation from
service) shall be made in accordance with section 409A and the guidance issued
thereunder.
(j) For purposes of this Section 5, an "earned" incentive cash award shall
mean the incentive cash award that would have been awarded to the Employee for
the full fiscal quarter ending immediately prior to the Date of Termination had
the Employee's Date of Termination not occurred pursuant to this Section 5 prior
to the date on which incentive cash awards were awarded to other executive
officers for that fiscal quarter.
6. Effect of Expiration or Termination. In the event this Agreement is
terminated pursuant to Section 5, the Employee shall tender his resignation to
the board of directors of SPSS and any Affiliate of SPSS on which he may then be
serving. Following the Employee's resignation, Sections 7, 8, 9 and 10 of this
Agreement shall continue in accordance with the terms and conditions of each
respective Section.
7. Offsets. Except with respect to any payments that are subject to section
409A of the Code, SPSS shall be entitled to withhold from any payments required
to be made to the Employee herein, including without limitation, payments in
respect of any SPSS capital stock, severance payments, and other similar items,
and any amounts that the Employee owes to SPSS.
8. Tax Gross-Up.
(a) If any payment or benefit to which the Employee is entitled under this
Agreement or otherwise from SPSS or any of its affiliates constitutes a
"parachute payment" within the meaning of section 280G of the Code and if, as a
result thereof, the Employee is subject to a tax under section 4999 of the Code
(an "Excise Tax"), SPSS shall pay to the Employee an additional amount (the
"Make-Whole Payment") which shall be equal to the sum of (i) the amount of the
Excise Tax, plus (ii) all income, excise and other applicable taxes imposed on
the Employee under the laws of any Federal, state or local government or taxing
authority by reason of the payments required under Sections 8(a)(i) and
8(a)(ii). The Make-Whole Payment shall be paid within 15 days after the Employee
notifies SPSS in writing that he has remitted the applicable taxes but in no
event later than the last day of the calendar year following the year in which
the Employee remits the applicable taxes. The determination of whether the
Employee is entitled to a Make-Whole Payment pursuant to this Section 8 and the
amount thereof shall be made by an accounting firm selected by SPSS and the
determination of such accounting firm shall be final and binding upon both SPSS
and the Employee.
(b) The Employee shall notify SPSS in writing of any claim by the Internal
Revenue Service that, if successful, would result in an Excise Tax that would
otherwise have required a Make-Whole Payment pursuant to Section 8(a). Such
notification shall be given as soon as practicable but no later than ten
business days after the Employee is informed in writing of such claim and shall
apprise SPSS of the nature of such claim and the date on which such claim is
requested to be paid. The Employee shall not pay such Excise Tax prior to the
expiration of the thirty (30) day period following the date on which it gives
such notice to SPSS (or such shorter period ending on the date that any payment
of the Excise Tax is due) (the "Consideration Period"). SPSS may take either of
the following actions with respect to the claim:
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(i) If SPSS does not desire to contest the claim, SPSS shall notify
the Employee in writing and shall pay to the Employee a
Make-Whole Payment, which Make-Whole Payment shall be paid within
15 days after the Employee notifies SPSS in writing that he has
remitted the applicable taxes, but in no event later than the
last day of the calendar year following the year in which the
Employee remits the applicable taxes.
(ii) If SPSS desires to contest the claim, SPSS shall inform the
Employee in writing prior to the end of the Consideration Period
that it desires to contest such claim and the Employee shall:
(A) give SPSS any information requested by SPSS relating to such
claim;
(B) take such action in connection with contesting such claim as
SPSS shall reasonably request in writing from time to time,
including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by SPSS;
(C) cooperate with SPSS in good faith in order to effectively
contest such claim; and
(D) permit SPSS to participate in any proceedings relating to
such claim;
provided, however, that SPSS shall bear and pay directly all
costs and expenses (including interest and penalties) incurred in
connection with such contest. If SPSS does not prevail in its
contest of the claim (whether as a result of settlement or
otherwise) such that the Employee is required to pay an Excise
Tax, SPSS shall pay to the Employee a Make-Whole Payment, which
Make-Whole Payment shall be paid within 5 days after the Employee
notifies SPSS in writing that he has remitted the applicable
taxes, but in no event later than the last day of the calendar
year following the year in which the Employee remits the
applicable taxes.
9. Director and Officer Insurance. SPSS agrees that it shall indemnify the
Employee against any actual or threatened actions or proceedings brought against
the Employee by reason of the fact that he is or was an employee, officer,
consultant or agent of the Company, as and to the extent specified in that
certain Indemnification Agreement between the Company and the Employee dated May
21, 2007. The Employee shall be covered by the director and officer insurance
policies maintained by the Company, and the Company shall make special
arrangements, if necessary, to continue to provide insurance coverage to the
Employee following the Date of Termination, unless the Employee is terminated
for Good Cause pursuant to Section 5(a)(ii) hereof.
10. Non-Competition; Confidentiality; Work for Hire.
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(a) The Employee understands that the Company's business concerns
proprietary computer programs and related documentation (software) which
includes, but is not limited to, the SPSS mainframe/mini software product line
and the SPSS micro/PC software product line. The Employee understands that in
the course of his employment with SPSS, SPSS and/or its Affiliates may provide
the Employee with, or access to, such software (including, without limitation,
source listings therefor), as well as confidential and/or proprietary prospect
and customer lists, data, research, specifications, memoranda, files, records,
plans, concepts, flow charts, drawings, designs, descriptions, formulations,
trade secrets and other confidential and/or proprietary information and
property, including but not limited to, information regarding SPSS operations,
businesses, affairs, management and market structure (all of the foregoing
collectively referred to as the "Confidential Property").
(b) The Employee acknowledges and agrees that the Confidential Property,
and all information and intellectual property and other data which the Employee
develops in connection with his employment duties, is the sole and exclusive
property of SPSS and is not available to any third parties.
(c) The Employee will regard and preserve as confidential and as trade
secrets all the Confidential Property. During the Employee's employment and
thereafter, the Employee will not, directly or indirectly, communicate or
divulge to, or use for the benefit of himself or any other person, firm,
association or corporation, without the prior written consent of SPSS, any
Confidential Property. The Confidential Property shall remain the sole and
exclusive property of SPSS, and upon any expiration or termination of the Term
of Employment for any reason whatsoever, the Employee shall promptly return any
and all Confidential Property in his possession or control to SPSS.
(d) The Employee shall have no right, title or interest of any kind or
nature in any of the Confidential Property or any proceeds therefrom. With
respect to any Confidential Property which the Employee has developed or
develops (either alone or with others) during his employment with SPSS, the
Employee agrees:
(i) to disclose the same promptly to an officer of SPSS;
(ii) to grant and assign to SPSS, without additional payment or
consideration of any kind, all of the Employee's rights, titles
and interests therein, as directed by SPSS;
(iii) to execute any applications, assignments and other instruments
in writing that SPSS may prepare, at the Company's expense, to
apply for, obtain or maintain, solely for the benefit of SPSS,
any patents or proprietary interests therein, in the United
States and any and all foreign countries; and
(iv) to provide any and all assistance as SPSS may request, at the
Company's expense, in the prosecution of such applications, in
the prosecution or defense of any patent interferences, and in
any and all litigation in which SPSS may be involved relating to
the same.
13
The above shall not apply to the Employee's general skills and knowledge nor to
enhancement of the employee's general skills and knowledge as a result of his
employment, nor shall the above apply to protectible information which is or
becomes in the public domain through no fault of the Employee or protectible
information which bears no reasonable relation to the software business of SPSS
as described in Section 10(a).
(e) The Employee further recognizes and agrees that:
(i) SPSS licenses the use of various computer software ("Licensed
Software") from a variety of outside companies. SPSS does not own
the Licensed Software or its related documentation and, unless
authorized by the licensor, does not have the right to reproduce
it;
(ii) The Employee will use Licensed Software only in accordance with
the terms of the applicable license agreement;
(iii) If the Employee learns of any misuse of Licensed Software or
related documentation within SPSS, he shall notify the
appropriate party at SPSS of the misuse;
(iv) SPSS employees caught making, acquiring or using unauthorized
copies of Licensed Software will be disciplined as appropriate
under the circumstances; and
(v) According to the U.S. Copyright Law, illegal reproduction of
copyrighted Licensed Software can be subjected to various
substantial civil damages and/or criminal penalties, including
fines and imprisonment. Other Licensed Software may be covered by
trade secret/confidentiality agreements which are protected under
state laws.
(f) The Employee hereby further covenants and agrees that, during the
period of his employment with SPSS, and during the Agreed Period (as hereinafter
defined), the Employee shall not (i) be engaged or involved in any manner in
Prohibited Activities (as hereinafter defined) in any Prohibited Territory (as
hereinafter defined) or (ii) solicit or otherwise engage with (except pursuant
to the Employee's employment with SPSS) any customers or clients of SPSS
existing on the date of such expiration or termination, in any transactions
which are in direct competition with the statistical data analysis software
business of SPSS which SPSS did or could have engaged in with those customers or
clients at any time during the Employee's employment with SPSS. For purposes of
this Section 10, (i) "Prohibited Activities" shall mean any development, sales,
marketing, licensing and/or distribution of any statistical data analysis
software which is directly competitive with any products being marketed by SPSS
or any of its Affiliates as of the date of reference, and (ii) "Prohibited
Territory" means the United States, Europe and/or any other country or
applicable geographic area where SPSS or its Affiliates are engaging, as of the
date of reference, in the marketing of any products. The term "Agreed Period"
shall mean a period of eighteen (18) months after the date of any expiration or
termination of the Term of Employment; provided, however, that if the Employee
intends to accept, and actually accepts, employment with a business entity that
has its principal place of business and
14
headquarters in Europe, and the Employee's place of work for such entity shall
be within Europe, then, with respect to Prohibited Activities in Europe and
solicitation of SPSS customers located in Europe, the Agreed Period shall be a
period of six (6) months after the date of any expiration or termination of the
Term of Employment.
If SPSS is sold or merged into another company or other business entity, or
otherwise ceases to exist for any reason, and this Agreement is not assumed in
full by the company or other business entity to which SPSS is sold or merged
into (including an assumption by operation of law), or the Employee is not
offered a comparable position to the position then held by the Employee at SPSS
in lieu of the assumption of this Agreement, which position is accepted by the
Employee, the provisions of this Section 10(f) shall terminate effective upon
the occurrence of the events described in this sentence. Notwithstanding the
foregoing, in the event of a Change of Control (as defined in Section 5(h)) and
subsequent termination of the Employee's employment for any reason within twelve
(12) months after the Change of Control Effective Date, the provisions of this
Section 10(f) shall terminate upon the Employee's Date of Termination.
(g) SPSS encourages its employees to author and publish papers and articles
related to their lines of work with SPSS. However, the Employee acknowledges
that SPSS reserves the right to approve such material prior to publishing and,
if necessary, to delete any portion that SPSS does not wish to disclose to
others outside of SPSS.
(h) During the Agreed Period, the Employee will not directly or indirectly
employ, solicit for employment, or advise or recommend to any other person that
they employ or solicit for employment, any employee of SPSS or any Affiliate.
(i) During the Agreed Period, the Employee will not directly or indirectly
hire, engage, send any work to, place orders with, or in any manner be
associated with any supplier, contractor, subcontractor or other person or firm
which rendered manufacturing or other services, or sold any products, to SPSS or
any Affiliate if such action by the Employee would have a material adverse
effect on the business, assets or financial condition of SPSS or any Affiliate.
(j) The Employee understands that a breach by him of any provision of this
Agreement may cause substantial injury to SPSS which may be irreparable and/or
in amounts difficult or impossible to ascertain, and that in the event the
Employee breaches any provision of this Agreement, SPSS shall have, in addition
to all other remedies available in the event of a breach of this Agreement, the
right to injunctive or other equitable relief. Further, the Employee
acknowledges and agrees that the restrictions and commitments set forth in this
Agreement are necessary to protect the Company's legitimate interests and are
reasonable in scope, area and time, and that if, despite this acknowledgment and
agreement, at the time of the enforcement of any provision of this Agreement a
court of competent jurisdiction shall hold that the period or scope of such
provision is unreasonable under the circumstances then existing, the maximum
reasonable period or scope under such circumstances shall be substituted for the
period or scope stated in such provision.
In connection with the foregoing provisions of this Section 10, the
Employee represents that the Employee's experience, capabilities and
circumstances are such that
15
such provisions will not prevent the Employee from earning a livelihood. The
Employee further agrees that the limitations set forth in this Section 10
(including, without limitation, any time or territorial limitations) are
reasonable and properly required for the adequate protection of the business of
SPSS (and its Affiliates). In the event any such territorial or time limitation
is deemed to be unreasonable by a court of competent jurisdiction, the Employee
agrees to the reduction of the territorial or time limitation to the area or
period which such court shall have deemed reasonable.
It is understood and agreed that the covenants made by the Employee in this
Section 10 shall survive the expiration or termination of this Agreement.
11. Non-Waiver of Rights. The failure to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
12. Arbitration. Any dispute as to any claim under this Agreement shall be
settled by arbitration in Chicago, Illinois by a panel of three arbitrators, who
shall be appointed pursuant to the rules of the American Arbitration
Association. The arbitration shall be conducted promptly and expeditiously in
accordance with the applicable arbitration rules of the American Arbitration
Association. Any award issued as a result of such arbitration shall be final and
binding on the parties, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
13. Severability. Whenever there may be a conflict between the provisions
of this Agreement and any statute, prevailing law, ordinance or regulation, the
latter shall prevail, but in such event the provisions of this Agreement so
affected shall be construed and limited only to the extent necessary to bring it
within the requirements of such law and in no event shall such illegality or
unenforceability offset the remaining provisions or remaining portions of this
Agreement.
14. Notices. Any notice given by either party hereunder shall be in writing
and shall be personally delivered or shall be mailed, certified or registered
mail, postage prepaid, as follows:
To SPSS: SPSS Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
With a copy to: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To the Employee: At the address of the Employee as set
forth on the payroll
16
records of SPSS.
or to such other address as may have been furnished to the other party by
written notice.
15. Assignment. The rights and obligations of SPSS under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of SPSS.
16. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof and supersedes the
Original Agreement and all other prior agreements and representations, written
or oral, including any agreements evidencing equity-based compensation ("Equity
Agreements") to the extent that this Agreement is inconsistent with such Equity
Agreements. No representations or agreements, written or oral, other than those
representations and agreements contained in this Agreement, have been made to or
in favor of the Employee. This Agreement may not be changed orally, but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
17. Applicable Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to its
conflicts of law doctrine, and the Employee hereby consents to personal
jurisdiction in Illinois with regard to any dispute arising between the parties
hereto.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SPSS Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Its: President and Chief Executive
Officer
Employee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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