EMPLOYMENT AGREEMENT
EXHIBIT 2.2
Bridgeline
Software, Inc., a Delaware corporation (the “Employer” or the “Company”),
and Xxxxxxx
Xxxxxxx (the “Employee”), in consideration of the
mutual promises made herein, agree as follows:
ARTICLE
1
TERM OF
EMPLOYMENT
Section 1.1 Specified
Period. Employer hereby employs
Employee, and Employee hereby accepts employment with Employer for the period
beginning on July 1, 2008 (the “Commencement
Date”), and
terminating on June 30, 2009 (“Initial
Term”).
Section 1.2 Succeeding
Term. At the
end of the Initial Term, or any succeeding one year term, this Employment
Agreement shall automatically renew for successive periods of one (1) year each
(a “Succeeding
Term”) unless the Employer
gives written notice of nonrenewal not less than sixty (60) days prior to the
end of the Initial Term or Succeeding Term, as applicable. If such
notice of renewal is not provided to the Employee by the Employer, the
Employment Agreement will terminate, except the provisions of Sections 2.3, 2.4,
2.5 and 2.6 shall continue in force so long as the Employee remains employed by
the Employer or any Affiliate of the Employer, whether under this Agreement or
not, and whether as a consultant or not, and shall survive any termination of
employment under this Agreement for the periods specified therein, all as more
specifically provided in Section 7.10. Once this Employment Agreement
terminates then the Employee shall become an employee at will at the end of the
Initial Term or Succeeding Term, as applicable.
Section 1.3 Employment
Term Defined. As used herein, the
phrase “Employment Term” refers to the entire period of employment of Employee
by Employer hereunder, whether such employment is during the Initial Term and
any Succeeding Terms or following the end of the Succeeding Term, as an employee
at will.
ARTICLE
2
DUTIES AND OBLIGATIONS OF
EMPLOYEE
Section 2.1 General
Duties. Employee shall serve as
Executive Vice President and General Manager for the Denver region of the
Employer. In such capacity, Employee shall do and perform all services, acts or
things consistent within the scope of his employment and with the Employee’s
skill and expertise in accordance with the instructions of and policies set by
Employer’s Chief Executive Officer, or his designee. Employee shall perform such
services at 000 00xx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000 or at such other location in the Denver metropolitan
area as may be designated by Employer. The Employee shall be available to make
business trips both within and outside the United States for the purpose of
meeting with and consulting with other members of the Employer’s management, as
well as with present and proposed customers and parties with whom the Employer
does business, all on such reasonable terms, bearing in mind the position of the
Employee.
Section
2.2 Devotion to Employer’s
Business.
(a) Employee
shall devote his best efforts and entire productive time, ability and attention
to diligently promote and improve the business of Employer during the Employment
Term.
(b) Employee
shall not engage in any other business duties or pursuits whatsoever (except as
otherwise provided in Subsection (g) below), or directly or indirectly render
any services of a business, commercial or professional nature to any other
person or organization, whether for compensation or otherwise, without the prior
written consent of the Employer’s President & CEO. This Agreement shall not
be interpreted to prohibit Employee from making passive personal investments or
conducting private business affairs if those private business affairs do not
materially interfere with the services required under this
Agreement.
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Section
2.3 Confidential Information;
Tangible Property; Competitive Activities.
(a) Employee
shall hold in confidence and not use or disclose to any person or entity without
the express written authorization of Employer, either during the Employment Term
or any time thereafter, secret or Confidential Information (as defined below) of
Employer, as well as secret or Confidential Information and materials received
in confidence from third parties by Employee or Employer. If any Confidential
Information described below is sought by legal process, Employee will promptly
notify Employer and will cooperate with Employer in preserving its
confidentiality in connection with any legal proceeding.
The
parties hereto hereby stipulate that, to the extent it is not known publicly,
the information described in this Section (herein referred to as “Confidential
Information”) is important, material and has independent economic value (actual
or potential) from not being generally known to others who could obtain economic
value from its disclosure or use and that any breach of any terms of this
Section 2.3 is a material breach of this Agreement: (i) the names, buying habits
and practices of Employer’s customers or prospective customers; (ii) Employer’s
sales and marketing strategy and methods and related data; (iii) the names of
Employer’s vendors and suppliers; (iv) cost of materials/services; (v) the
prices Employer obtains or has obtained or for which it sells or has sold its
products or services; (vi) development costs; (vii) compensation paid to
employees or other terms of employment; (viii) Employer’s past and
projected sales volumes; (ix) confidential information relating to actual
products, proposed products or enhancements of existing products, including, but
not limited to, source code, programming instructions, engineering methods and
techniques, logic diagrams, algorithms, development environment, software
methodologies, and technical specifications for the Employer’s web design and
content management software. Confidential Information shall also include all
information which the Employee should reasonably understand is secret or
confidential information, provided the same is clearly designated as
confidential by marking or stamping “Confidential” or similar words on the cover
of such information, or by orally communicating such confidentiality and
confirming such confidentiality in a later written communication. Confidential
Information shall also include all information which the Employee should
reasonably understand is secret or confidential information, if the Employee has
participated in or otherwise been involved with the development, analysis,
invention or origination of such Confidential Information belonging to the
Employer, including, without limitation, methods, know-how, formula, customer
and supplier lists, personnel and financial data, business plans, as well as
product information, product plans and product strategies. Notwithstanding the
foregoing, “Confidential Information” does not include any information which (A)
is now available to the public or which becomes available to the public, (B) is
or becomes available to the Employee from a source other than the Employer and
such disclosure is not a breach of a confidentiality agreement with the
Employer, or (C) is required to be disclosed by any government agency or in
connection with a court proceeding.
All
Confidential Information, as well as all software code, methodologies, models,
samples, tools, machinery, equipment, notes, books, correspondence, drawings and
other written, graphical or electromagnetic records relating to any of the
products of Employer or relating to any of the Confidential Information of
Employer which Employee shall prepare, use, construct, observe, possess, or
control shall be and shall remain the sole property of Employer and shall be
returned by Employee upon termination of employment.
(b) During
his employment and for twelve (12) months after the termination of his
employment for any reason whatsoever, Employee shall not, directly or
indirectly, without the written consent of the Employer: (i) invest (except for
the ownership of less than 3% of the capital stock of a publicly held company),
or hold a directorship or other position of authority in any of the Employer’s
Direct Competitors (“Direct
Competitors” defined as: any person
or entity, or a department or division of an entity, whereby more than 25% of
the person’s or entity’s total revenues are derived from the Competitive
Services (“Competitive
Services” defined as design and
development for third parties of: on-demand web property management tools and
custom web applications (including but not limited to content management,
analytics, eCommerce, digital asset management, relationship management,
eNewsletters, eSurveys, event registration, and grants management), custom
application development, usability engineering, eCommerce development, rich
media development, eTraining development, and search engine optimization), (ii)
undertake preparation of or planning for an organization or offering of
Competitive Services, (iii) combine or collaborate with other employees or
representatives of the Employer
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or any
third party for the purpose of organizing, engaging in, or offering Competitive
Services, or (iv) be employed by, serve as a consultant to or otherwise provide
services to (whether as principal, partner, shareholder, member, officer,
director, stockholder, agent, joint venturer, creditor, investor or in any other
capacity), or participate in the management of a Direct Competitor or
participate in any other business that the Employer may be engaged or is
planning to undertake in at the date of the termination of this
Agreement.
(c) During
his employment and for twelve (12) months after the termination of such
employment for any reason whatsoever (except as otherwise provided in Subsection
(g) below), Employee shall not become employed by, associated with, or engaged
by, in any capacity whatsoever, any customer, client or account (as defined
below) of the Employer whereby Employee provides services to such customer,
client or account similar to those provided by the Employer to the customer,
client or account during Employee’s employment. Employee acknowledges and
understands that Employer’s customers, clients and accounts have executed or
will execute agreements pursuant to which the customer, client or account agrees
not to hire Employer’s employees.
(d) During
his employment and for twelve (12) months after the termination of such
employment for any reason whatsoever (except as otherwise provided in Subsection
(g) below), Employee shall not, directly or indirectly, without the consent of
the Employer: contact, recruit, solicit, induce or employ, or attempt to
contact, recruit, solicit, induce or employ, any employee, consultant, agent,
director or officer of the Employer to terminate his employment with, or
otherwise cease any relationship with, the Employer; or contact, solicit,
divert, take away or accept business from, or attempt to contact, solicit,
divert or take away, any clients, customers or accounts, or prospective clients,
customers or accounts, of the Employer, or any of the Employer’s business with
such clients, customers or accounts which were, directly or indirectly,
contacted, solicited or served by Employee, or were directly or indirectly under
his responsibility, while Employee was employed by the Company, or the identity
of which Employee became aware during the term of his employment.
As used
in this agreement the term “client,” “customer,” or
“accounts” shall include: (i) any person or entity that is a client, customer or
account of the Employer on the date hereof or becomes a client, customer or
account of the Employer during the Employee’s employment; (ii) any person or
entity that was a client, customer or account of the Employer at anytime during
the one-year period preceding the date of Employee’s termination; and (iii) any
prospective client, customer or account to whom the Employer has made a
presentation (or similar offering of services) within a period of 180 days
preceding the date of the termination of Employee’s employment.
(e) The
covenants of this Section 2.3 shall be construed as separate covenants covering
their subject matter in each of the separate counties and states in the United
States in which Employer (or its Affiliates) transacts its business. If at any
time the foregoing provisions shall be deemed to be invalid or unenforceable or
are prohibited by the laws of the state or place where they are to be enforced,
by reason of being vague or unreasonable as to duration or place of performance,
this Section shall be considered divisible and shall become and be immediately
amended to include only such time and such area as shall be determined to be
reasonable and enforceable by the court or other body having jurisdiction over
this Agreement; and the Employer and the Employee expressly agree that this
Section, as so amended, shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(f) The
Employee represents and warrants that Employee is free to enter into this
Agreement and to perform each of the terms and covenants contained herein, and
that doing so will not violate the terms or conditions of any agreement between
Employee and any third party.
(g) Nothing
in this Section 2.3 shall restrict the Employee from providing Competitive
Services to any organization, including but not limited to a Direct Competitor,
as a shareholder, member, officer, director, stockholder, agent, joint venturer,
investor, employee, consultant or in any other capacity to such organization in
the event Employee’s employment by Employer is terminated without Cause or for
Good Reason in accordance with the terms of Section 5.4 hereof.
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Section
2.4 Inventions and Original
Works.
(a) Subject
to Section 2.4(b) below, the Employee agrees that he will promptly make full
written disclosure to Employer, will hold in trust for the sole right and
benefit of Employer, and hereby irrevocably assigns to Employer without any
additional compensation all of his right, title and interest in and to any and
all inventions (and patent rights with respect thereto), original works of
authorship (including all copyrights with respect thereto), developments,
improvements or trade secrets which Employee may solely or jointly conceive or
develop or reduce to practice, or cause to be conceived or developed or reduced
to practice, relating to or concerning the business of the Employer, whether or
not conceived, developed or reduced to practice: (i) during working hours, (ii)
while on Employer premises, (iii) with use of Company equipment, materials or
facilities, or (iv) while performing his duties under this Agreement (“Employer
Intellectual Property”).
Employee
acknowledges that all original works of authorship relating to the business of
Employer which are made by him (solely or jointly with others) within the scope
of his duties under this Agreement and which are protectable by copyrights are
“works made for hire” as that term is defined in the United States Copyright Act
(17 U.S.C.A., Section 101), and that Employee is an employee as defined under
that Act. Employee further agrees from time to time to execute written transfers
to Employer of ownership or specific original works or authorship (and all
copyrights therein) made by Employee (solely or jointly with others) which may,
despite the preceding sentence, be deemed by a court of law not to be “works
made for hire” in such form as is acceptable to Employer in its reasonable
discretion. Employee hereby waives in favor of Employer and its assigns and
licensees any and all artist’s or moral rights Employee may have in respect of
any Invention pursuant to any local, state or federal laws or statutes of the
United States and all similar rights under the laws of all
jurisdictions.
(b) The
parties agree that the “business of the Employer” for the purposes of this
Section 2.4 is acting as a designer and developer for third parties of “on-demand web
property management tools and custom web applications (including but not limited
to content management, analytics, eCommerce, digital asset management,
relationship management, eNewsletters, eSurveys, event registration, and grants
management), custom application development, usability engineering, eCommerce
development, rich media development, eTraining development, and search engine
optimization.” Employee shall provide to Employer, and attach hereto as
Exhibit 2.4(b), a list identifying and describing in reasonable detail all
inventions (and patent rights with respect thereto), original works of
authorship (including all copyrights with respect thereto), developments,
improvements, concepts or trade secrets which Employee has solely or jointly
conceived or developed or reduced to practice, or caused to be conceived or
developed or reduced to practice to date, and other intellectual property of the
Employee. For the avoidance of doubt, Employee will identify on Exhibit 2.4(b)
with sufficient detail any intellectual property belonging to the Employee prior
to the date hereof, including that related to the business of the Employer
(collectively the “Employee’s Personal Intellectual Property”). Employer
acknowledges and agrees that the provisions of Section 2.4(a) shall not apply to
Employee’s Personal Intellectual Property or to any inventions (and patent
rights with respect thereto), original works of authorship (including all
copyrights with respect thereto), developments, improvements, concepts or trade
secrets conceived of or developed by Employee during the term of this Agreement
that is not Employer Intellectual Property.
Section 2.5 Maintenance of Records. Except with respect to the Intellectual Property for which the Employer has no rights, Employee agrees to keep and maintain reasonable written records of all inventions, original works of authorship, trade secrets developed or made by him (solely or jointly with others) during the Employment Term. The Employee also agrees to make and maintain adequate and reasonable written records customarily maintained by corporate managers, including, without limitation, lists and telephone numbers of persons and companies he has contacted during his engagement by the Employer. Immediately upon the Employer’s request and promptly upon termination of the Employee’s engagement with the Employer, the Employee shall deliver to the Employer all written records as described in this Section, together with all memoranda, notes, records, reports, photographs, drawings, plans, papers, computer storage media, Confidential Information or other documents made or compiled by the Employee or made available to the Employee during the course of his engagement by the Employer, and any copies or abstracts thereof, whether or not of a secret or confidential nature, and all of such records, memoranda or other documents shall, during and after the engagement of the Employee by the Employer, be and shall be deemed to be the property of the Employer.
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Section 2.6 Obtaining
Letters Patent and Copyright Registration. During the Employment
Term hereunder, Employee agrees to assist Employer, at Employer’s expense, to
obtain United States or foreign letters patent, and copyright registrations (as
well as any transfers of ownership thereof) covering inventions and original
works of authorship assigned hereunder to Employer. Such obligation shall
continue beyond the termination of this Agreement for a reasonable period of
time not to exceed one (1) year subject to Employer’s obligation to compensate
Employee at such rates as may be mutually agreed upon by the Employer and
Employee at the time, but not exceeding the annualized rate provided for in
Section 4.1 of this Agreement, and reimbursement to Employee of all expenses
incurred.
If
Employer is unable for any reason whatsoever, including Employee’s mental or
physical incapacity to secure Employee’s signature to apply for or to pursue any
application for any United States of foreign letters, patent or copyright
registrations (or any document transferring ownership thereof) covering
inventions or original works or authorship assigned to Employer under this
Agreement, Employee hereby irrevocably designates and appoints Employer and its
duly authorized officers and agents as Employee’s agent and attorney-in-fact to
act for and in his behalf and stead to execute and file any such applications
and documents and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations or
transfers thereof with the same legal force and effect as if executed by
Employee. This appointment is coupled with an interest in and to the inventions
and works of authorship and shall survive Employee’s death or disability.
Employee hereby waives and quitclaims to Employer any and all claims of any
nature whatsoever which Employee now or may hereafter have against third parties
for infringement of any patents or copyrights resulting from or relating to any
such application for letters, patent or copyright registrations assigned
hereunder to Employer.
ARTICLE
3
COMPENSATION OF
EMPLOYEE
Section 3.1 Annual
Salary. As
compensation for his services hereunder, Employee shall be paid a salary at the
rate of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) per year
(“Salary”) from the Commencement Date. Salary shall be paid in equal
installments not less frequently than twice each month.
Section 3.2 Quarterly
Bonus. The
Employee shall be eligible to be paid a quarterly bonus earned in accordance
with the terms set forth on Exhibit 4.2.
Section 3.3 Tax
Withholding. Employer shall have the
right to deduct or withhold from the compensation due to Employee hereunder any
and all sums required for federal income and social security taxes and all state
or local taxes now applicable or that may be enacted and become applicable in
the future, for which withholding is required by law.
Section 3.4 Stock
Options. The
Employer may, at the Employer’s sole discretion, issue stock options to the
Employee. All stock options granted the Employee shall be subject to a stock
option agreement, a stock option plan and such other restrictions as are
generally applicable to stock options issued to employees of the Employer, as
each may be amended from time to time.
ARTICLE
4
EMPLOYEE
BENEFITS
Section 4.1 Annual
Vacation. Employee shall be
entitled to twenty (20) business days of paid vacation during each year of this
Agreement. Employee may be absent from his employment for vacation at
such times as are approved by the Employer’s President and CEO. Unused vacation
shall not be carried over into the next year, and will not be paid in the form
of cash.
Section 4.2 Benefits. Employee shall be
eligible to participate in benefit plans provided by Employer, including health,
and life insurance coverage should Employer elect to participate in any such
plans.
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Section 4.3 Business
Expenses. Employer shall reimburse
Employee for all appropriate expenses for travel and entertainment by Employee
for legitimate business purposes, provided that they are approved in writing by
the person to whom the Employee reports, and provided that Employee furnishes to
Employer adequate records and documentary evidence for the substantiation of
each such expenditure, as required by the Internal Revenue Code of 1986, as
amended.
ARTICLE
5
TERMINATION OF
EMPLOYMENT
Section 5.1 Termination. Employee’s employment
hereunder may be terminated by Employee or Employer as herein provided, without
further obligation or liability, except as expressly provided in this
Agreement.
Section 5.2 Resignation,
Retirement, Death or Disability. Employee’s employment
hereunder shall be terminated at any time by Employee’s resignation, or by
Employee’s retirement, death, or his inability to perform the essential
functions of his position under this Agreement, with or without reasonable
accommodation, for a total of ninety (90) days or more in any continuous two
hundred (200) day period because of a substantial physical or mental impairment
(“Disability”).
Employer shall not be liable for payment of base or bonus compensation during
any period of disability, though benefits shall continue to accrue.
Section 5.3 Termination
for Cause. Employee’s employment
hereunder may be terminated for Cause. “Cause” is conduct, as determined by the
Chief Executive Officer or his designee, involving one or more of the following:
(i) gross misconduct by the Employee; or (ii) the willful disregard of the rules
or policies of the Company; or (iii) the material violation of any
noncompetition or nonsolicitation covenant with, or assignment of inventions
obligation to, the Company; or (iv) the conviction of the Employee of a felony;
or (v) the commission of an act of embezzlement, fraud or breach of fiduciary
duty which results in loss, damage or injury to the Company; (vi) engagement in
a specific act or pattern of behavior which impugns the reputation of the
Company or which creates an environment materially non-conducive to the growth
and development of the Company, provided that such pattern of behavior used as
the basis for termination shall be available for such use only if written notice
of such pattern of behavior shall have been given to the Employee, and if such
behavior was again exhibited five (5) days or more thereafter; (vii) the failure
of the Employee to perform in a material respect his employment obligations as
set forth in this Agreement without proper cause and the continuation thereof
after delivery to Employee of written notice from the Employer specifying in
reasonable detail the nature of such failure. In making any determination of
“Cause”, the Chief Executive Officer (or his designee) shall act in good faith.
For purposes of this Section, no act, or failure to act, on the Employee’s part
shall be considered “willful” unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission was in the
best interest of the Employer.
Section 5.4 Termination
Without Cause; Termination for Good Reason. Employee’s employment
hereunder may be terminated without Cause upon ten (10) business days’ notice
for any reason. Employee’s employment may be terminated by Employee at any time
for Good Reason. For purposes of this Agreement, “Good Reason” shall
mean:
(a)
failure of the Employer to continue Employee in the position of Executive Vice
President and General Manager for the Denver region of employer; (b) material
diminution in the nature or scope of the Employee’s responsibilities, duties or
authority (provided, however, any general diminution of the business of the
Employer, shall not constitute “Good Reason”); (c) material failure of the
Employer to provide the Employee the compensation and benefits in accordance
with the terms of Articles 3 and 4 hereof; or, the requirement by the Employer
that Employee relocate his principal place of business in Denver, Colorado to a
location more than thirty (30) miles from Denver, Colorado.
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Section 5.5 Expiration. Employee’s employment
hereunder shall be terminated upon expiration of the Employment Term as provided
in Sections 1.1 and 1.2.
Section 5.6 Notice of
Termination. Any termination of the
Employee’s employment by the Employer
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or by the
Employee (other than termination by reason of resignation, retirement, or
death), shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a “Notice of Termination” shall
mean a notice which shall include the specific termination provision in this
Agreement relied upon, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee’s
employment under the provision so indicated.
Section 5.7 Date of
Termination. The “Date of
Termination” shall be: (a) if the Employee’s employment is terminated by his
death, the date of his death; (b) if the Employee’s employment is terminated by
reason of Employee’s disability, thirty (30) days after Notice of Termination is
given; (c) if the Employee’s employment is terminated for Cause, the date the
Notice of Termination is given or after if so specified in such Notice of
Termination; (d) if the Employee’s employment is terminated for any other
reason, the date on which a Notice of Termination is given.
ARTICLE
6
PAYMENTS TO EMPLOYEE UPON
TERMINATION
Section 6.1 Death,
Disability or Retirement. In the event of
Employee’s Retirement, Death or Disability, all benefits generally available to
Employer’s employees as of the date of such an event shall be payable to
Employee or Employee’s estate, in accordance with the terms of any plan,
contract, understanding or arrangement forming the basis for such payment.
Employee shall be entitled to such other payments as might arise from any other
plan, contract, understanding or arrangement between Employee or Employer at the
time of any such event.
Section 6.2 Termination
for Cause or Resignation. In the event Employee is
terminated by Employer for Cause or Employee resigns (other than a Termination
by Employee for Good Reason), neither Employer nor any affiliate shall have any
further obligation to Employee under this Agreement or otherwise, except for
payment to Employee of any and all accrued salary and bonuses, provision of
COBRA health care continuation and otherwise as may be expressly required by
law.
Section 6.3 Termination
Without Cause; Termination for Good Reason. Subject to other
provisions in this Article 6 to the contrary and during the Initial Term and any
Succeeding Annual Terms only, upon the occurrence of a termination without Cause
by Employer or a Termination for Good Reason by Employee, Employer
shall:
(a) Pay to
Employee any and all accrued salary, bonuses and vacation;
(b) Pay to
Employee, or in the event of Employee’s subsequent death, to Employee’s
surviving spouse, or if none, to Employee’s estate, as severance pay or
liquidated damages, or both, during each calendar month for a period extending
over the number of months during which this Agreement would have remained in
effect, without renewal, but for such termination, a sum equal to (i) the
greater of (1) one-half of the Salary and (2) the monthly rate of Salary payable
under this Agreement for a period of the remainder of the Initial Term or the
Succeeding Term, as applicable, each payable in semi-monthly installments, and
(ii) quarterly bonus payments for a period of the remainder of the Initial Term,
or the Succeeding Term, as applicable;
(c) Cause any
stock options issued to Employee which have not lapsed and which are not
otherwise exercisable to be accelerated so as to be immediately exercisable by
Employee; pay the Employer’s portion of the COBRA health insurance continuation
premium in the same amount Employer contributed for Employee’s health insurance
as of the date of Employee’s termination through the remaining period of months
of the Initial Term or Succeeding Term and thereafter provide COBRA health care
continuation at Employee’s cost (provided that the Employee makes the required
premium contributions); provided, however, that Employer’s obligation to
contribute its portion of the COBRA insurance premium will cease immediately in
the event Employee becomes employed following termination, and is eligible for
alternative coverage. Employee agrees to notify Employer immediately regarding
such new employment; and
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(d) Provide
to Employee such other payments or benefits as may be expressly required by
law.
ARTICLE
7
GENERAL
PROVISIONS
Section 7.1 Notices. Any notices to be
given hereunder by either party to the other shall be in writing and may be
transmitted by personal delivery or by mail, first class, postage prepaid, or by
electronic facsimile or email transmission (with verification of receipt).
Mailed notices shall be addressed to the parties at their respective addresses
set forth herein. Each party may change that address by written notice in
accordance with this section. Notices delivered personally shall be deemed
communicated as of the date of actual receipt. Mailed notices shall be deemed
communicated as of one day after the date of mailing.
Section 7.2 Governing
Law; Jurisdiction. This Agreement shall be
governed by, construed and interpreted in accordance with the laws of the State
of Delaware, without regard to its principles of conflicts of laws. Any action
or proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement or any of the transactions contemplated hereby, shall be
brought against any of the parties in the courts of the State of Delaware, and
each of the parties irrevocably submits to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts) in any such action or
proceeding, waives any objection to venue laid therein, agrees that all claims
in respect of any action or proceeding shall be heard and determined only in any
such court and agrees not to bring any action or proceeding arising out of or
relating to this Agreement or any transaction contemplated hereby in any other
court. Process in any action or proceeding referred to in the preceding sentence
may be served on any party anywhere in the world.
Section 7.3 Attorney’s
Fees and Costs. If Employer or Employee
commences any action at law or in equity against arising out of or relating to
this Agreement (other than any statutory cause of action relating to employment,
including but not limited to claims under state and federal employment laws) the
substantially prevailing party shall be entitled to reimbursement of its
reasonable attorneys’ fees, costs and necessary disbursements in addition to any
other relief to which it may be entitled. This provision shall be construed as
applicable to the entire contract.
Section 7.4 Entire
Agreement. This Agreement
supersedes any and all other agreements, either oral or in writing, between the
parties hereto with respect to the subject matter contained herein and contains
all of the covenants and agreements between the parties with respect to that
subject matter. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid or binding on either party.
Section 7.5 Modification. Any modification of this
Agreement will be effective only if it is in writing and signed by the Employee
and properly authorized by Employer’s Board of Directors and signed by an
officer of Employer.
Section 7.6 Effect of
Waiver. The
failure of either party to insist on strict compliance with any of the terms,
covenants or conditions of this Agreement by the other party shall not be deemed
a waiver of that term, covenant or condition, nor shall any waiver or
relinquishment of any right or power at any one time or times be deemed a waiver
or relinquishment of that right or power for all or any other
times.
Section 7.7 Partial
Invalidity. If any provision in this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
Section 7.8 Assignment. The rights and
obligations of the parties hereto shall inure to the benefit of, and shall be
binding upon, the successors and assigns of each of them; provided, however,
that the Employee shall not, during the continuance of this Agreement, assign
this Agreement without the previous written consent of the Employer, and
provided, further, that nothing contained in this Agreement shall restrict or
limit the Employer in any manner whatsoever from assigning any or all of its
rights, benefits or obligations
____________
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Employee Bridgeline
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under
this Agreement to any successor corporation or entity or to any affiliate of the
Employer without the necessity of obtaining the consent of the Employee.
“Affiliate” as used throughout this Agreement means any person or entity which
directly or indirectly controls, or is controlled by, or is under common control
with, the Employer.
Section 7.9 Specific
Performance. If there is any
violation of the obligations herein contained, the Employer or Employee, or any
of their Affiliates, shall have the right to specific performance in addition to
any other remedy which may be available at law or at equity.
Section 7.10 Survival
of Sections. The provisions of
Sections 2.3, 2.4, 2.5 and 2.6 shall continue in force so long as the Employee
remains employed by the Employer or any Affiliate of the Employer, whether under
this Agreement or not, and whether as a consultant or not, and shall survive any
termination of employment under this Agreement for the periods specified
therein. Notwithstanding the foregoing, the provision of Sections 2.5 shall
survive for only three years following any termination of employment under this
Agreement.
Section 7.11 Injunctive
Relief/Acknowledgement. Employee understands and
acknowledges that the Employer’s Proprietary Information, Inventions and good
will are of a special, unique, unusual, extraordinary character which gives them
a peculiar value, the loss of which cannot be reasonably compensated by damages
in an action at law. Employee understands and acknowledges that, in addition to
any and all other rights or remedies that the Employer may possess, Employer
shall be entitled to injunctive and other equitable relief, without posting a
bond, to prevent a breach or threatened breach of this Agreement (and/or any
provision thereof) by Employee . In the event that a court of appropriate
jurisdiction awards the Company injunctive or other equitable relief due to
Employee’s breach of the terms of this Agreement, Employee agrees that the time
periods provided in Article 2.3 of this Agreement shall be tolled for the period
during which Employee is in breach of the Agreement, and shall resume once
Employee complies with such injunctive or other equitable relief.
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Employee Bridgeline
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IN
WITNESS WHEREOF, the parties have executed this Employment Agreement, in the
case of Employer, by its duly authorized officer as an instrument under seal at
Woburn, Massachusetts on this 1st day of
July, 2008.
Employer: | Employee: | |||
Bridgeline Software, Inc. | ||||
/s/
Xxxxxx X. Xxxxxx
|
/s/
Xxxxxxx Xxxxxxx
|
|||
Xxxxxx
X. Xxxxxx
|
Xxxxxxx
Xxxxxxx
|
|||
President
& CEO
|
|
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__________
Employee Bridgeline
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