EXHIBIT 10.39
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of May 2000, between
Adaytum, Inc. (the "Company"), a Delaware corporation, and Xxxx Xxxxxxx, (the
"Employee"), a resident of the Netherlands, provides as follows:
WHEREAS, the Company seeks to employ the Employee, subject to the terms and
conditions of this Agreement;
WHEREAS, the Employee seeks to obtain employment with the Company;
WHEREAS, the Employee and the Company are desirous of setting forth the terms
and conditions of their employment relationship in this Agreement;
WHEREAS, at some point in the future, the Company's ownership may change, if the
Company elects to convert from a privately held corporation to a publicly held
corporation;
WHEREAS, the Company wants to provide certain key employees of the Company,
including the Employee, with a higher level of job security than otherwise might
exist, given the potential ownership changes at the Company;
WHEREAS, the Company believes that providing certain key employees of the
Company, including the Employee, with a higher level of job security, will
redound to the benefit of the Company;
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NOW, THEREFORE, the Company and the Employee, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
mutually agree and covenant as follows:
ARTICLE I. DEFINITIONS
The following terms shall have the meanings set forth below, unless the context
clearly requires otherwise. Where appropriate, additional terms are defined
elsewhere in this Agreement.
1.1 "Agreement" means this Employment Agreement, and any amendments hereto
(mutually agreed upon by the parties, and set forth in writing).
1.2 "Base Salary" means the annual compensation payable to the Employee, as
set forth at Paragraph 3.1 of this Agreement, and as modified periodically
following the execution of this Agreement.
1.3 "Associated Company" means any company other than Adaytum, Inc. which
is for the time being a subsidiary of the Adaytum Group (Adaytum KPS Software
Limited, Insight Systems ApS, ET CETERA).
1.4 "Board" means the Board of Directors of the Company.
1.5 "Company" means Adaytum, Inc.
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1.6 "Confidential Information" means information that is proprietary to the
Company or proprietary to others and entrusted to the Company, whether or not
trade secrets. Confidential Information includes information proprietary to the
Company's clients, customers and business contacts, and entrusted to the
Company. Confidential Information includes, but is not limited to, information
relating to business plans and to business as conducted or anticipated to be
conducted, and to past, current or anticipated products. Confidential
Information also includes, without limitation, information concerning research,
development, purchasing, accounting, marketing, selling and services. All
information that Employee has a reasonable basis to consider confidential is
Confidential Information, whether or not originated by Employee and without
regard to the manner in which Employee obtains access to this and any other
proprietary information.
1.7 "Employee" means Xxxx Xxxxxxx.
1.8 "Plan" means any bonus or incentive compensation agreement, plan,
program, policy or arrangement sponsored, maintained or contributed to by the
Company, to which the Company is a party or under which employees of the Company
are covered, including, without limitation, any stock option, restricted stock
or any other equity-based compensation plan, annual or long-term incentive
(bonus) plan, and any employee benefit plan, such as a profit sharing, medical,
dental, disability, accident, life insurance, automobile allowance, perquisite,
fringe benefit, personal time off, severance or any other agreement, plan,
program, policy or arrangement intended to benefit employees or executive
officers of the Company.
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1.9 "Inventions" means ideas, improvements and discoveries, whether or not
such are patentable or copyrightable, and whether or not in writing or reduced
to practice.
1.10 "Works of Authorship" means writings, drawings, software, semiconductor
mask works, and any other works of authorship, whether or not such are
copyrightable.
1.11 "Termination Period" means any period after which the Company has
notified the Employee in writing that it is taking steps to dismiss the Employee
either by application to the Cantonial Court or to the Regional Employment
Office or otherwise and includes any notice period required to be given under
clause [4.2].
ARTICLE II. EMPLOYMENT, REPRESENTATIONS, DUTIES, AND OBLIGATIONS.
2.1 TITLE/REPORTING RELATIONSHIP: The Company will employ the Employee in
the capacity of Senior Managing Director, International. The Employee will
report to the Company's Chief Executive Officer, Xxx Xxxxxxxxx. The Company,
however, reserves the right to alter the Employee's title and/or modify the
reporting relationship at any time in the future.
2.2 EMPLOYEE'S QUALIFICATIONS AND REPRESENTATIONS: The Employee warrants
and confirms, as a condition of this Agreement and his employment with the
Company, that the information previously provided to the Company and contained
in any resume, CURRICULUM VITAE or other writing furnished by the Employee, as
well as in any oral
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representations made by the Employee, regarding the Employee's qualifications
(including, but not limited to, educational background, degrees, job history, ET
CETERA) were truthful, accurate, and not misleading. The Employee further
warrants that he is free to enter into and perform this Agreement and that by
doing so the Employee will not be in breach of any obligation to any third
party, including, but not limited to, any former employer of Employee.
2.3 DUTIES: During his employment by the Company, the employee will be
responsible for building a presence for Adaytum in international markets,
through both direct and indirect channels. Furthermore, employee agrees to
devote reasonable attention and time during normal business hours (9.00am to
17:30p.m, Monday to Friday) to the business and affairs of the Company, to the
extent necessary to discharge the responsibilities assigned to Employee, and, to
use Employee's best efforts to perform faithfully and efficiently such
responsibilities.
During his employment with the Company, Employee shall:
(a) promptly and faithfully comply with all directions given by the
Company;
(b) provide to the Company such information relating to its affairs as it
may from time to time request; and,
(c) comply with the Company's policies and procedures; provided, that to
the extent such policies and procedures are inconsistent with this Agreement,
the provisions of this Agreement shall control.
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Further, during his employment with the Company, the Employee shall not:
(d) directly or indirectly, be in any manner engaged, concerned or
interested in any other trade, business, profession or occupation whatsoever,
except with the prior written consent of the Company's Chief Executive Officer
and subject to any terms and conditions which the Chief Executive Officer
imposes; and,
(e) without the prior authority of the Chief Executive Officer;
(i) commit the Company to any contract exceeding $5,000;
(ii) pledge the credit of the company or grant any security charge,
lien or encumbrance over any or all of its assets;
(iii) bind or purport to bind the Company in guaranteeing or acting
as surety for the debt or liability of any other person;
(iv) cause the Company to enter into any commitment, contract or
arrangement otherwise than in the normal course of business or which is
outside the scope of her normal duties or which is of an unusual
onerous or long-term nature;
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2.4 TRAVEL: The Employee's initial place of employment is Xxxxxxxxxxxxxxx
00, 0000 XX Xxxxxxxxxx, Xxx Xxxxxxxxxxx. Employee shall travel both nationally
and internationally as Employee's duties may reasonably demand.
2.5 CERTAIN PROPRIETARY INFORMATION: If Employee possesses any proprietary
information of another person or entity as a result of a prior employment or
other relationship, Employee shall honor any legal obligation that Employee has
with that person or entity with respect to such proprietary information.
2.6 EFFECTIVE DATE OF EMPLOYMENT: Employee shall begin his employment with
the Company on May 1, 2000.
ARTICLE III. COMPENSATION, BENEFITS, EXPENSES.
3.1 BASE SALARY: During the term of Employee's employment under this
Agreement, the Company shall pay Employee a Base Salary at an annual rate of NLG
484,060, until such time that a higher annual rate is approved by the Chief
Executive Officer. Such Base Salary will be paid in equal regular periodic
payments in accordance with the Company's regular payroll practices. Whether in
full from a Dutch BV or this total amount split as partial director's payments
amongst the subsidiaries in combination with income from a Dutch BV. For the
avoidance of doubt, the Base Salary includes a holiday allowance. If Employee's
Base Salary is increased from time to time during Employee's employment under
this Agreement, the increased amount shall become the Base Salary for the
remainder of Employee's employment under this Agreement. Employee's Base Salary
will be reviewed by the Company on at least an
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annual basis or as otherwise agreed between the Company and the Employee from
time to time.
3.2 3.2 BONUS: In addition to Employee's other remuneration hereunder, the
Employee may receive an annual bonus to be computed and paid by the Company in
accordance with the Schedule attached hereto as Exhibit A. If the Employee's
employment with the Company is terminated for any reason other than cause, the
Employee may be eligible for a pro rata bonus corresponding to the number of
months the Employee worked during the calendar year the employment relationship
ended. The Company retains sole discretion to determine whether the Employee
shall receive such a bonus. The Company will have no bonus obligation to the
Employee following the calendar year in which the Employee's employment ended.
3.3 PENSION - The Company will make contributions of 5% of total annual
earnings or such other amount as is agreed between the parties from time to time
into such Netherlands state approved pension scheme as agreed between the
Company and the Employee from time to time. The Company will increase the
contribution to 6% of total annual earnings after 3 years of service and to 7%
after 5 years of service.
3.4 HEALTH AND WELFARE INSURANCE: The Company shall pay the reasonable
premiums in respect of health and welfare insurance expenses effected by or on
behalf of the Employee, his spouse and unmarried dependant children below the
age of 27, subject to the terms and conditions of such insurance from time to
time.
3.5 CAR:
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3.5.1 The Company shall, for so long as the Employee continues to perform his
duties, provide the Employee with a car of a size and type commensurate (in the
opinion of the Company) with his position and remuneration for the time being.
The Company shall tax and comprehensively insure the car and pay or reimburse
against receipts, or other appropriate evidence, the costs of running, servicing
and repairing the car. The Employee will be permitted to use the car for
reasonable private journeys.
3.5.2 The Employee shall:
(a) take good care of the car and ensure that the provisions and conditions
of any policy of insurance relating to it are observed;
(b) forthwith notify the Company and supply such information as the Company
may request if the Employee is convicted of any road traffic offence or becomes
involved in any accident involving the car;
(c) comply with all instructions given by the Company from time to time
with regard to cars provided by the Company for the use of its staff; and
(d) return the car in a satisfactory condition to the Company as it may
direct immediately upon termination of his employment.
3.6 PHONE: The Company will provide the Employee with a tri-band GSM mobile
phone for business [and reasonable private] use.
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3.7 STOCK OPTIONS: Employee shall be entitled to receive 100,000 share
options upon executing this Agreement. Employee's rights to these share options
will be governed exclusively by the terms and conditions of the applicable
Company stock option plans, subject to the following exception: the share
options will vest over a three (3) year period (36,667 options per year), if the
employment is terminated by the Company for any reason within the first twelve
(12) months of employment, no share options will be exercisable. If the Employee
is terminated by the Company for any reason following his first twelve (12)
months of employment, no additional share options will vest. If the Employee has
worked for the Company for six (6) months, and the Company experiences a Change
in Control (as defined in Paragraph (5.6.1) below, all outstanding share options
shall vest immediately. If the Employee has worked for the Company for less than
six (6) months at the time the Company experiences a Change in Control, the
Employee will be entitled to vest the equivalent number of months corresponding
to the number of full calendar months of service (e.g., the Employee has worked
for two months when a Change in Control occurs, so the Employee would be
entitled to vest two additional months of share options).
3.8 PERSONAL TIME OFF (PTO): The Company's PTO year runs from January 1st
to December 31st and the Employee may take personal time off totalling
twenty-five (25) working days in each PTO year (in addition to public holidays).
For calendar year 2000, the Employee shall be eligible only for sixteen and a
half (16.5) PTO days. Personal time off should be taken at such times convenient
to the Company as may be agreed between Employee and the Company and in
accordance with any policies as to personal time off from time to time
established by the Company.
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(a) ACCRUAL: PTO entitlement will accrue from month to month during each
PTO year and the entitlement to accrued PTO pay upon Termination will be in
proportion to the period of employment during the year. Upon termination, the
Employee shall reimburse the Company for PTO taken in excess of Employee's
accrued entitlement.
(b) CARRY-FORWARD: The Employee may carry forward any unused PTO
entitlement for two subsequent PTO years.
3.9 ILLNESS: If Employee is unable to perform Employee' s duties hereunder
because of physical or mental illness, bodily injury or disease, the Company
will pay sick pay of the minimum amount required by law or such other amount as
the Company in its sole discretion decides.
3.10 BUSINESS EXPENSES: The Company shall reimburse the Employee (in
accordance with the relevant policies established by the Company from time to
time) for all travel, hotel and other out-of-pocket expenses properly and
reasonably incurred and documented, exclusively for and in the course of
performing Employee's duties.
ARTICLE IV. TERMINATION.
4.1 TERMINATION: As set forth elsewhere in this Agreement, depending on the
circumstances of the termination of employment, the termination may not relieve
the parties of some of their contractual obligations to each other. The question
of whether
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specific obligations survive the termination of the employment relationship is
addressed elsewhere in this Agreement.
4.2 Subject to subparagraphs 4.4, 4.5, 4.6 and 4.7 of this agreement,
either party may terminate this Agreement by giving to the other one month's
written notice or such other notice period as may be required by law.
4.3 During the Termination Period, whether notice is given by the Company
or the Employee, the Company shall be under no obligation to assign any duties
to the Employee and shall be entitled to exclude him from its premises, provided
that this shall not affect the Employee's entitlement to receive his normal
salary and other contractual benefits.
4.4 TERMINATION IN THE EVENT OF DEATH: The Company's obligations to the
Employee pursuant to this Agreement shall terminate in the event of the
Employee's death. Nothing in this Paragraph, however, shall supersede any
obligations the Company may owe to the Employee's estate and/or family members,
as specifically set forth in any of the health, benefit or insurance plans or
programs in which the Employee is enrolled at the time of his death. Any vested
options due to the Employee shall survive the Employee's death.
4.5 TERMINATION IN THE EVENT OF DISABILITY: Subject to any legal rights the
Employee may have, the Company may give notice to the Employee pursuant to
clause 4.2 of this Agreement to terminate this Agreement if the Employee becomes
disabled.
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As used in this Paragraph, "disabled" means that the Employee cannot perform the
essential functions of the job, with or without a reasonable accommodation.
4.5.1 "Disability" Defined: As used in this Agreement, "disability" or
"disabled" means that the Employee has a mental or physical condition that
renders him unable to perform the essential functions of his job, with or
without reasonable accommodation, during ninety (90) or more days within any one
hundred and eighty (180) day period.
4.6 TERMINATION FOR CAUSE: The Company's obligations to the Employee
pursuant to this Agreement shall terminate immediately and without further
compensation if the Board of Directors, or the Company's Chief Executive
Officer, elects to terminate this Agreement for "cause" and notifies the
Employee in writing of that decision. A termination for "cause" will affect
the severance benefits for which the Employee otherwise may have been
eligible, as set forth further below.
4.6.1 "Cause" Defined: As used in this Agreement, the word "cause" means the
following:
(i) The Employee has engaged in willful and/or material misconduct,
including, but not limited to, willful and material failure to perform the
Employee's duties and responsibilities as an officer or employee of the Company;
(ii) The Employee has committed fraud, misappropriation or embezzlement, in
connection with the Company's business, committed an act (or acts) of personal
dishonesty relevant to the duties and responsibilities of the Employee, or
committed any
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willful and deliberate misconduct that is materially and/or demonstrably
injurious to the Company;
(iii) The Employee has been convicted of or has pleaded NOLO CONTENDERE to
criminal misconduct (exclusive of any misdemeanour offences); and,
(iv) The Employee has breached his obligations to the Company as set forth
in this Agreement.
4.7 TERMINATION AS A RESULT OF A CHANGE IN CONTROL: If a Change in Control
shall occur and (a) if, following the change in control, the Employee is
terminated by the Company pursuant to Paragraphs 4.2 or 4.5 above; or, (b) if,
following the change in control, the Employee's job responsibilities and/or
duties are altered in a material manner, resulting in the Employee voluntarily
giving notice to terminate his employment relationship within three (3) months
of the change in control, the Employee will be eligible for the severance
benefits set forth below.
4.7.1 "Change in Control" Defined: A "change in control" shall mean any of
the following:
(i) a sale of all or substantially all of the assets of the Company;
(ii) the acquisition of the securities of the Company, representing more
than fifty (50) percent of the combined voting power of the Company's then
outstanding securities by any person or group of persons;
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(iii) a consolidation or merger of the Company in which the Company is not
the continuing or surviving corporation or pursuant to which shares of the
Company's outstanding capital stock are converted into cash, securities or other
property, other than a consolidation or merger of the Company in which Company
shareholders immediately prior to the consolidation or merger have the same
proportionate ownership of voting capital stock of the surviving corporation
immediately after the consolidation or merger;
(iv) in the event that the shares of the voting capital stock of the Company
are traded on an established securities market: a public announcement that any
person has acquired or has the right to acquire beneficial ownership of
securities of the Company representing more than fifty (50) percent of the
combined voting power of the Company's then outstanding securities, and for this
purpose the terms "person" and "beneficial ownership" shall have the meanings
provided in Section 13(d) of the Securities and Exchange Act of 1934, as
amended, or the commencement of or public announcement of an intention to make a
tender offer or exchange offer for securities of the Company representing more
than fifty (50) percent of the combined voting power of the Company's then
outstanding securities; and,
(v) the Board of Directors of the Company, in its sole discretion,
determines that there has been a sufficient change in the share ownership of the
Company to constitute a change of effective ownership or control of the Company.
4.8 TERMINATION BY THE EMPLOYEE: The Company's obligations to the Employee
pursuant to this Agreement shall terminate if the Employee elects to terminate
this
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Agreement and notifies the Company in writing of such election in accordance
with clause [4.2]. A termination decision by the Employee will affect the
severance benefits for which the Employee otherwise may have been eligible, as
set forth further below.
ARTICLE X. XXXXXXXXX COMPENSATION AND BENEFITS.
5.1 SEVERANCE PAYMENTS: If applicable, all severance payments as outlined
in Paragraphs 5.2 - 5.4 will be payable to the Employee within 60 days of
execution of a general release as outlined in Paragraph 5.6.
5.2 TERMINATION WITHOUT CAUSE: Subject to the qualifications of Paragraphs
5.5 and 5.6 below, if the Company terminates this Agreement without cause, the
Employee shall be entitled to receive six (6) months of his base salary and
benefits (exclusive of any stock options). If, however, following a Change in
Control, the Company terminates the Employee's employment within one (1) year of
the Change in Control, the Employee shall be entitled to receive twelve (12)
months of his base salary and benefits (exclusive of any stock options).
Regardless of whether there has been a Change in Control, after twenty-four (24)
months of employment with the Company, the severance benefits set forth in this
Paragraph (5.2) shall be reduced to six (6) months.
5.3 EMPLOYEE INITIATED TERMINATION AS A RESULT OF A CHANGE IN CONTROL:
Subject to the qualifications of Paragraphs 5.5 and 5.6 below, if the Employee
terminates this Agreement pursuant to the provisions of Paragraph 4.7 above, he
shall be entitled to severance benefits for a period of six (6) months.
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5.4 TERMINATION DUE TO DISABILITY: Subject to the qualifications of
Paragraphs 5.5 and 5.6 below, if the Company terminates this Agreement because
the Employee has become disabled, as set forth in Paragraph 4.3 above, the
Employee shall be entitled to severance compensation and benefits for a period
of six (6) months, subject to the following limitation. The Employee will be
obligated to seek whatever benefits are available under the Company's or the
state's disability plans. Assuming the Employee qualifies for benefit payments
under such plans, his severance compensation will be reduced by the amount of
the benefits he is receiving from such plans.
5.5 FORFEITURE OF SEVERANCE BENEFITS: Regardless of the reason why the
employment relationship ends, if following termination, the Employee breaches
his obligations to the Company pursuant to ARTICLES VI and VII below, the
Company's obligations to provide the Employee severance compensation and
benefits shall cease immediately.
5.6 RELEASE OF CLAIMS: If the Employee wishes to qualify for the severance
compensation and benefits set forth in this ARTICLE (and as described in
Paragraphs 5.2 - 5.4), the Employee must execute a general release of all
claims. The general release will be prepared by counsel for the Company and will
relate to all potential claims preceding the execution of the general release.
The general release will comply with all statutory requirements governing
releases. Unless a general release is executed by the Employee, he shall not be
eligible for severance compensation and benefits.
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5.7 TERMINATION FOR CAUSE: If the Company terminates this Agreement for
cause, the Employee shall not be entitled to receive any severance compensation
and benefits.
5.8 TERMINATION BY EMPLOYEE: If the Employee elects to terminate this
Agreement for any reasons other than those set forth above in Paragraph 4.7, the
Employee shall not be entitled to receive any severance compensation and
benefits.
5.9 NON-MONETARY BENEFITS: If the Company is obligated to provide severance
benefits pursuant to this Agreement, the Company, in its sole discretion, shall
provide the Employee a monetary benefit on a monthly basis that will enable the
Employee to obtain independently an equivalent benefit to that provided by the
Company's plan, for the period the Employee is eligible for severance benefits.
The Company's obligation pursuant to this Paragraph, however, shall cease if and
when the Employee obtains alternative employment and receives a comparable
benefit from his subsequent employer, or when the benefit period set forth in
this Agreement ends, whichever occurs sooner. The Employee agrees that he will
notify the Company within seven (7) days of receiving comparable benefits from
another employer and that if he fails to do so, he will be obligated to refund
the value of any benefits provided by the Company corresponding to the period
when the benefits overlapped.
5.10 SET OFF: Any payments or the reasonable value of the benefits received
by the Employee during any Termination Period from the Company or any of its
Associated Companies shall be deducted from the Severance Payment payable under
this ARTICLE V.
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ARTICLE VI. CONFIDENTIAL INFORMATION
6.1 CONFIDENTIALITY: The Employee agrees with the Company, and (as separate
obligations) with each of the Associated Companies to which Employee's duties
relate, that Employee will (both during the continuance of the Agreement and
after termination, without limit of time):
(a) not disclose, divulge or communicate to any person (save to those
officials of the Company or Associated Companies whose proper province it is to
know the same or with the written consent of the Board or if ordered so to do by
a court of a competent jurisdiction) any secret, private or confidential
information whatsoever of the Company or Associated Companies or of any customer
or client of the Company or Associated Companies including without limitation
their operations, finance, business, products, processes, techniques, know-how,
customers, clients, plans or other affairs whatsoever which is acquired by the
Employee in the course of his employment with the Company or Associated
Companies (whether or not under this Agreement) or which would not have been
acquired but for such employment;
(b) do everything reasonably within Employee's power to keep such
information secret and confidential and to avoid disclosure to persons not
entitled to the same;
(c) not use any such information for Employee's own benefit or for the
benefit of any person or persons or in a manner which would or might be
detrimental to the Company or Associated Companies;
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(d) sign such confidentiality agreements in favor of the Company or
Associated Companies or any other person as the Company may reasonably request
and will observe all such agreements and all other restrictions and obligations
upon or of the Company or Associated Companies known to Employee for the time
being in relation to any confidential material received from any third party.
ARTICLE VII. NON-COMPETITION AND NON-SOLICITATION
7.1 NON-COMPETITION: Employee agrees that during the term of this Agreement
and for a period of one year following termination of employment for any reason,
Employee will not directly or indirectly, alone or as a partner, officer,
director, shareholder or employee of any other firm or entity, engage in any
commercial activity in the U.S. in competition with any part of the Company's
business as conducted during the term of this Agreement or as of the date of
such termination of employment or with any part of the Company's contemplated
business with respect to which Employee has private, secret, or Confidential
Information as governed by ARTICLE VII. For purposes of this clause,
"shareholder" shall not include beneficial ownership of less than five percent
(5%) of the combined voting power of all issued and outstanding voting
securities of a publicly held corporation whose stock is traded on an
acknowledged stock exchange.
7.2 NON-SOLICITATION OF EMPLOYEES: Employee recognizes that the Company's
workforce constitutes an important and vital aspect of its business on a
world-wide basis. Employee agrees that for a period of two (2) years following
the termination of this Agreement for any reason whatsoever, Employee shall not
solicit, or assist anyone else in the solicitation of, any of the Company's
then-current employees to terminate
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their employment with the Company and to become employed by any business
enterprise with which the Employee may then be associated, affiliated or
connected.
7.3 NON-SOLICITATION OF CLIENTS: For one (1) year following termination of
employment, Employee shall not use his knowledge of the business requirements
of, or canvas, or by any other means seek or solicit business or orders from any
person or entity who is or has been at any time during the twelve (12) months
preceding the Employee's termination, a client or customer of the Company or
Associated Companies, for competing products.
7.4 POST-EMPLOYMENT OBLIGATIONS: Following termination, the Employee will
not directly or indirectly:
(i) represent himself or permit himself to be represented as being
connected with or successor to the Company or Associated Companies or their
respective businesses or as acting on behalf of any of them;
(ii) represent, promote, advertise or refer to his previous connection with
the Company or Associated Companies in such a way as to seek to utilize any
goodwill of any of the Companies; this provision will not preclude the Employee
from referring to his previous connection with the Companies on any CURRICULUM
VITAE or application of employment;
(iii) carry on, cause or permit to be carried on any business under or using
any name, style, logo or image which is, has been or might be used by the
Company or Associated
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Companies which is calculated to cause confusion with such a name, style, logo
or image or infer a connection with any of the Companies.
7.5 CONSIDERATION: The Employee expressly agrees that there is good and
sufficient consideration for the promises set forth in this Agreement.
ARTICLE VIII. INTELLECTUAL PROPERTY.
8.1 ACKNOWLEDGMENT: The Employee acknowledges that his duties include the
making of inventions, discoveries, and improvements and Employee accordingly
hereby acknowledges and agrees that all rights of any kind in respect of every
invention, discovery, creation or improvement of any product, process, formula,
know-how technique, expertise, method, design or similar matter or in respect of
any works of authorship, writings, drawings, computer programs, or similar
tangible or non-tangible manifestation of knowledge of any kind which relate to
or concern the business of the Company or Associated Companies in any way made
or conceived by him alone or jointly during the term of this Agreement whether
or not made during the course of his employment hereunder shall belong to the
Company. Employee will retain the right of ownership to any books and/or
lectures related to international business strategy and personal motivation
which are created on Employee's own time and expense.
8.2 ASSIGNMENT: The Employee hereby assigns to the Company all (if any)
interest which he may from time to time have in such rights and agrees that the
Company shall be exclusively entitled to apply for patents or any other
protection whatsoever therefore, except those outlined in ARTICLE 8.1.
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8.3 DISCLOSURE: The Employee shall disclose to the Company in writing any
matter before referred to as soon as Employee is able together with all
information concerning the same which the Company may request or which may be
relevant and Employee hereby irrevocably appoints the Company as Employee's
attorney to act for Employee and in Employee's name in the preparation and
execution of any necessary documents and to prosecute any application in
connection with matters covered by this clause including power for the Company
and persons nominated by it to designate any other person to act as attorney in
such respects.
8.4 FURTHER ASSURANCE: Notwithstanding such power of attorney, the Employee
shall at the expense of the Company do, execute and sign all such things, deeds,
and documents as the Company may consider desirable in connection with any such
works of authorship, invention, discovery, creation or improvement of any kind.
8.5 NOTICE: Minnesota law exempts from this Agreement "an invention for
which no equipment, supplies, facility or trade secret information of the
employer was used and which was developed entirely on the Employee's own time,
and (1) which does not relate (a) directly to the business of the employer or
(b) to the employer's actual or demonstrably anticipated research or
development, or (2) which does not result from any work performed by the
Employee for the employer."
ARTICLE IX. GENERAL PROVISIONS.
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9.1 SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and inure
to the benefit of the Company, its successors and assigns, and to the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
9.2 COLLECTIVE AGREEMENTS: No collective agreements apply to the Employee's
employment
9.3 REASONABLENESS OF RESTRICTIVE COVENANTS: Employee and the Company
hereby stipulate that the prohibitions contained in ARTICLES VI, VII AND VIII of
this Agreement are reasonable, and each specifically waives any objection to the
reasonableness of said prohibitions.
9.4 SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF: In addition to any other
relief afforded by law, the Company shall have the right to enforce the
provisions of ARTICLES VI and VII of this Agreement by specific performance and
by injunctive relief against Employee and any other persons concerned thereby.
Damages, specific performance and injunctive relief shall not be considered as
alternative remedies. If the Company is successful in any action for enforcement
of any provisions of said ARTICLES, the costs and damages incurred by the
Company related thereto, including reasonable attorneys' fees and expenses,
shall be paid by Employee.
9.5 OFFSETS: Any amount payable to Employee pursuant to this Agreement may
be reduced for purposes of offsetting, either directly or indirectly, any
indebtedness or liability of Employee to the Company.
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9.6 NOTICES: Any notice hereunder shall be in writing and shall be properly
served on the Employee if served upon him personally or if left at or sent by
certified mail addressed to him at his address stated above or to any other
address known to the Company as then being his residence, and on the Company if
sent by certified mail to its registered office.
9.7 PREVIOUS AGREEMENTS: This Agreement operates as from the date of
execution by the Employee and Company (whichever is later, if the dates are
different) in substitution for and to the exclusion of any Employment Agreement
previously in force between the Company and/or Associated Companies, and
Employee.
9.8 WITHHOLDING: To the extent required by any applicable law, including,
without limitation, any federal or state income tax or excise tax law or laws,
the Federal Unemployment Tax Act or any comparable federal, state or local laws,
the Company retains the right to withhold such portion of any amount or amounts
payable to Employee under this Agreement as the Company (on the written advice
of outside counsel) deems necessary.
9.9 CAPTIONS: The various headings or captions in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
9.10 GOVERNING LAW: The validity, interpretation, construction, performance,
enforcement, and remedies of or relating to this Agreement, and the rights and
obligations of the parties hereunder, shall be governed by the substantive laws
of the
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International Court of Hague, each of the parties hereby consenting to the
exclusive jurisdiction of said courts for this purpose.
9.11 CONSTRUCTION: Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
9.12 WAIVERS: No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
right or remedy granted hereby or by any related document or by law.
9.13 MODIFICATION: This Agreement may not be modified or amended except by
written instrument signed by the parties hereto.
9.14 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement and
understanding between the parties hereto in reference to all the matters herein
agreed upon.
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9.15 COUNTERPARTS: This agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one (1) and the same instrument.
9.16 SURVIVAL: The parties expressly acknowledge and agree that the
provisions of this Agreement which by their express or implied terms extend
beyond the termination of employment hereunder, or beyond the termination of
this Agreement (including the provisions of ARTICLES VI, VII AND VIII) shall
continue in full force and effect notwithstanding termination of Employee's
employment hereunder or the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to
be duly executed and delivered as of the date below.
EMPLOYEE COMPANY
-------- -------
ADAYTUM INC,
a Delaware Corporation
/s/ Xxxx Xxxxxxx By Xxxxx X. Xxxxx
-------------------------- ---------------
Xxxx Xxxxxxx Title V.P. Human Resources
-------------------------------
Address: Address:
Xxxxxxxxxxxxxxx 00 Xxxxx 000
0000 XX Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxx
Xxx Xxxxxxxxxxx Xxxxxxxxxxx, Xxxxxxxxx 00000
Dated 1 August 2000 Dated Aug. 2, 2000
------------- ------------
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EXHIBIT A
BONUS
XXXX XXXXXXX, SENIOR MANAGING DIRECTOR, INTERNATIONAL
Annual Bonus Opportunity: NLG 242,030*
Quarterly Bonus Opportunity: NLG 60,508
Quarterly Objectives: To be defined the beginning of each fiscal quarter.
*Bonus will be paid if employee meets the objectives outlined at the beginning
of each fiscal Quarter.
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