EMPLOYMENT AGREEMENT
EFFECTIVE DATE: July 1, 1999
PARTIES AND ADDRESSES:
CorVu Corporation
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000 (the "Company")
Xxxxxx XxxXxxxxx
Level 4, 0 Xxxxx Xxxxx
Xxxxx Xxxxxx XXX 0000 XXXXXXXXX ("Executive")
RECITALS:
A. The Company is a Minnesota corporation engaged principally in the
business of developing, manufacturing and selling business software programs.
B. Executive is currently employed as the Company's Chairman, President
and Chief Executive Officer pursuant to an employment agreement which terminates
June 30, 1999.
C. The Company and Executive desire to enter into an employment
agreement pursuant to which Executive will serve as the Company's Chief
Executive Officer for the three year period ending June 30, 2002.
This Employment Agreement will be referred to as the "Agreement."
AGREEMENTS:
In consideration of the mutual promises and undertakings set forth
herein, the Company and Executive agree as follows:
ARTICLE 1
Term of Employment, Duties and Supervision
1.1) Employment; Term. The Company hereby employs Executive as its
Chairman, President and Chief Executive Officer pursuant to the terms of this
Agreement, and Executive hereby accepts such employment as of the date hereof.
Unless terminated pursuant to Articles 4 or 5, the term of employment shall
continue until June 30, 2002 (the "Term"), and thereafter shall renew
automatically for successive terms of one year each, upon the terms and
conditions set forth in this Agreement, as such may be modified by mutual
written agreement of the parties from time to time; provided, however, that
either Executive or the Company may terminate the employment of Executive during
the Term in accordance with, and subject to the right of Executive to receive
payments and other benefits that may be due pursuant to, Article 5. Each
12-month period commencing July 1 through June 30 during the Term is referred to
as an "Employment Year".
1.2) Duties; Title.
(a) Executive agrees, during his employment, to devote his
full time and best efforts to the business of the Company, including,
without limitation, the performance of those duties and
responsibilities reasonably and customarily associated with the
position of the Company's Chairman, President and Chief Executive
Officer; provided, however, that Executive's duties and
responsibilities consistent with Executive's position shall be subject
to determination by the Company's Board of Directors. While serving as
Chief Executive Officer, Executive shall be granted such powers and
authority as are reasonably and customarily associated with the
position of chief executive officer.
(b) Executive shall report to, and at all times shall be
subject to the direction of, the Company's Board of Directors and/or
its designee.
(c) Executive's title shall remain subject to the control of
the Board of Directors; provided, however, that during the term of this
Agreement, Executive shall always be designated as a principal
executive officer of the Company.
1.3) Additional Requirements. Executive, at all times during his
employment with the Company, shall comply with the Company's reasonable
standards, regulations and policies as determined or set forth by the Board of
Directors from time to time and as applicable to all employees and/or executive
employees of the Company.
1.4) Outside Activities. The Company acknowledges and agrees that from
time to time Executive may serve as a member of the Board of Directors of one or
more businesses or nonprofit entities other than the Company; provided, however,
that Executive provides the Company's Board of Directors with information about
each proposed directorship, including time required by such directorship,
whether such directorship may involve conflicts of interest with the Company or
its interests, the types of risks which such directorship may involve, and any
other factors Executive or the Board of Directors considers material respecting
such directorship. The Company's Board of Directors shall promptly consider all
submissions by Executive pursuant to this Paragraph 1.4. The Company's Board of
Directors may request in good faith that Executive not accept a particular
directorship, or more than a specific number of directorships, or that Executive
resign from a particular directorship, and Executive agrees to honor such
requests.
ARTICLE 2
Compensation
2.1) Compensation. Subject to Paragraph 4.2 and Articles 5, 7, 8 and 9
hereof, Executive shall be paid compensation for the performance of his duties
hereunder as follows:
(a) Salary. The Company shall pay Executive a base salary at
the rate of $330,000 for the Employment Year commencing July 1, 1999,
$380,000 for the Employment Year commencing July 1, 2000, and $420,000
for the Employment Year commencing July 1, 2001, payable monthly, which
may be adjusted from time to time by the Board of Directors. The
Company shall be entitled to deduct or withhold all taxes and charges
which the Company may be required to deduct or withhold therefrom.
(b) Options. Executive shall also be granted options to
purchase a total of 600,000 shares of the Company's common stock at
$1.50 per share, with 200,000 of said options vesting on July 1, 1999,
200,000 options vesting on July 1, 2000, and 200,000 options vesting on
July 1, 2001. The options must be exercised within 7 years from the
date of grant of the options and shall be subject to such other terms
and conditions as are contained in a Stock Option Agreement between
Company and Executive evidencing such options.
2.2) Termination of Compensation. Except as provided in Articles 4, 7,
8 and 9 of this Agreement, the Company's obligation to pay compensation to
Executive under this Article 2 shall terminate at the close of business on the
date on which Executive's employment is terminated; provided, however, that the
Company shall remain liable to pay Executive any amounts due Executive for
services rendered prior to such termination date pursuant to Paragraph 2.1(a).
ARTICLE 3
Expenses
3.1) Expenses. During the term of this Agreement, Executive shall be
entitled to prompt reimbursement by the Company for all reasonable, ordinary and
necessary travel, entertainment and other business related expenses incurred by
Executive (in accordance with the policies and procedures established by the
Company from time to time) in the performance of his duties and responsibilities
under this Agreement; provided, however, that Executive shall properly account
for such expenses in accordance with federal, state and local tax requirements
and the Company's policies and procedures.
ARTICLE 4
Benefits
4.1) Vacations; Holidays. Executive shall be entitled to four (4) weeks
of paid vacation plus all holidays in accordance with the Company's policies in
effect from time to time. Executive shall not be entitled to carry unused
vacation forward from one Employment Year to the next. Executive shall not be
entitled to compensation in any form in lieu of use of vacation and/or holiday
time off.
4.2) Compensation During Sickness or Disability.
(a) Subject to the remaining provisions of this Paragraph 4.2,
Executive shall be entitled to receive the monthly portion of
Executive's annual base salary in accordance with Article 2 hereof for
absences for physical or mental illness or injury during any Employment
Year which do not give rise to a determination of Executive's
disability pursuant to Paragraph 4.2(b) below.
(b) Subject to Paragraph 4.2(j), if, during any Employment
Year, Executive is absent from Executive's employment for more than
twenty (20) consecutive business days at any one time or more than
forty (40) business days in total, by reason of physical or mental
illness or injury, as determined by the Company or an examining
physician or mental health professional acceptable to the Company, or
in the event any other accident or occurrence gives rise to the
likelihood of Executive's absence for more than the period of time
specified above for reason of physical or mental illness or injury, as
determined by the Company or an examining physician or mental health
professional acceptable to the Company, Executive shall be deemed
disabled for the purposes hereof. In such event, Executive shall be
entitled to receive his base salary under Article 2, continued payment
by the Company of Executive's share of health, life and disability
insurance premiums (to the extent such benefits are offered by the
Company to its executive employees and subject to the conditions or
limitations of such insurance plans) during the first 90 calendar days
from the date such disability is determined to have occurred, and,
during such period, the Company may discontinue all other payments to
or on behalf of Executive under this Agreement. After such 90 calendar
day period, the Company shall terminate all payments to Executive.
Notwithstanding anything herein to the contrary, such 90 calendar day
period shall begin to run from the date such disability is determined
to have occurred, regardless of whether Executive has any unused
vacation. Executive shall not be entitled to any payments for unused
vacation in conjunction with the application of this Paragraph 4.2,
except to the extent any leave taken by Executive under this Paragraph
4.2 qualifies as a leave under the Family and Medical Leave Act, 29
U.S.C. Section 2601, et seq., in which event Executive may choose to
use unused vacation instead of disability under this Paragraph 4.2. If
Executive exercises such right, any unused vacation taken shall offset
any period of disability leave that otherwise would have been paid
under this Paragraph 4.2(b).
(c) If prior to any termination of Executive's employment
under this Paragraph 4.2 Executive is able to resume performance of his
duties under this Agreement, and if within six months of the resumption
of such duties Executive is again absent from his employment by reason
of physical or mental illness or injury for a period of more than ten
business days such subsequent disability period shall be deemed to be a
continuation of the immediately preceding disability period, and the
disability payments made by the Company to Executive shall be made only
for the remainder, if any, of the ninety (90) calendar day income
continuation period provided for above, and in no event shall
disability payments hereunder be made for a period or periods
aggregating more than ninety (90) calendar days.
(d) Any disability period commencing after Executive has
returned to his employment hereunder and has given reasonable and
proper attention to his duties for a continuous period of 180 calendar
days shall be deemed a new period of disability for purposes of this
Paragraph 4.2.
(e) Any disability compensation payable under this Article 4
shall be reduced by:
(i) any amount which is paid to Executive under any
private disability benefit plan or arrangement to which the
Company contributes or has contributed;
(ii) any benefits paid or payable to Executive on
account of the disability of Executive under any worker's
compensation law, occupational disease law, or similar
legislation of any state or of the federal government;
(iii) 50% of the amount of any related benefit which
Executive would be entitled to receive under the Federal
Social Security Act as in effect at the time the payment
hereunder is made; and
(iv) any benefits paid or payable to Executive under
any law of any state or of the federal government now in force
or hereafter enacted as compensation, wages or benefits in
lieu of wages on account of disability.
(f) Subject to a determination by the Company that Executive
is capable of returning to part or full-time employment, the
determination of the Company being conclusive if made with the advice
of a competent physician or mental health professional selected by it,
Executive may return to part-time or full-time employment at any time
prior to any termination of Executive's employment under this Paragraph
4.2. Following Executive's return to employment:
(i) if Executive returns to full-time employment, his
compensation shall be determined as though Executive had not
been disabled; or
(ii) if Executive returns to part-time employment,
Executive shall be entitled to a reasonable amount of
compensation for Executive's services rendered to the Company
as determined by a reasonable standard to be set by the
Company's Board of Directors.
(g) If Executive's employment is terminated, except for the
reasons stated in subparagraph (a), (b), (c)(iv) or (v), or (d) of
Paragraph 5.1 hereof, while the Company is making disability payments
to Executive, Executive shall be entitled to receive the disability
payments to which Executive would otherwise be entitled pursuant to the
provisions of this Paragraph 4.2.
(h) The Company shall comply with all applicable state and
federal laws relating to the disability of an employee, including laws
regarding reasonable accommodation requirements and laws governing the
granting of medical leaves of absence.
4.3) Life and Health Insurance; Other Benefits. During Executive's
employment, the Company shall provide such deferred compensation, disability
insurance, life insurance, health insurance and other benefits to Executive as
the Company provides for its executive officers, and such additional benefits as
the Company's Board of Directors may determine in its sole discretion; provided
that, the Company may exclude Executive from participation in any 401(k) plan
which the Company implements to the extent deemed advisable to ensure the
continued qualification of such plan under applicable tax laws and in lieu
thereof compensate Executive appropriately to make up for his exclusion. Nothing
in this Paragraph 4.3 shall be construed to require the Company to provide
Executive with any identified or other benefits.
ARTICLE 5
Termination
5.1) Events of Termination. Executive's employment hereunder:
(a) May be terminated by mutual written agreement of the
parties.
(b) Xxxxx terminate immediately upon the death of Executive.
(c) May be terminated by the Company upon written notice to
Executive for "Cause", which shall mean the following:
(i) Material failure of Executive to (a) faithfully,
diligently or competently perform the material duties,
requirements and responsibilities of his employment as
established pursuant to this Agreement, or (b) take reasonable
direction consistent with the position for which he has been
employed as described in Article 1 from the Board of Directors
or its designee; or
(ii) Failure of Executive to materially comply with
the reasonable policies, regulations and directives of the
Company as in effect from time to time; or
(iii) Any act or omission on the part of Executive
which constitutes a material failure to comply with material
provisions of this Agreement; or
(iv) Any act or omission on the part of Executive
which is clearly and materially harmful to the reputation or
business of the Company, including, but not limited to,
conduct which is inconsistent with federal and state laws
respecting harassment of, or discrimination against, one or
more of the Company's employees; or
(v) Conviction of Executive of, or a guilty or nolo
contendere plea by Executive with respect to, any crime
punishable as a felony; or any bar against Executive from
serving as a director, officer or employee of any firm the
securities of which trade publicly.
No reasonable action, omission or failure by
Executive shall constitute "cause" if done or omitted to be
done by Executive in good faith and with a reasonable belief
that any such act, omission or failure was in the best
interests of the Company.
In the event of termination pursuant to subparagraphs
(i) through (iv) above, the Company shall give Executive
written notice (the "Cause Notice") of proposed termination
which provides reasonable detail as to the cause or causes
asserted by the Company and sets forth the date of a meeting
of the Company's Board of Directors, which date shall be no
sooner than five days after the date on which the Cause Notice
is given, at which Executive may appear, with an advisor of
his choice if Executive so desires, to discuss Executive's
proposed termination. At such meeting Executive and
Executive's advisor will honor requests by the director
presiding at the meeting to leave the meeting to allow for
discussion by the directors in Executive's absence. At such
time as the Board of Directors reaches a decision with respect
to Executive's termination, whether at the meeting set forth
in the notice to Executive, or at a subsequent meeting, if the
decision to terminate Executive is affirmed by the Board of
Directors, Executive will be given written notice of such
affirmation and Executive's employment will terminate
immediately upon the giving of such notice. In the event of
termination pursuant to subparagraph (v) above, Executive's
termination shall be immediate upon the giving of written
notice.
(d) Shall terminate in accordance with the provisions of
Paragraph 4.2(b) hereof. Nothing in Paragraph 4.2(b) hereof or in this
Paragraph 5.1(d) shall limit the right of either party to terminate
Executive's employment under any other subparagraph of Paragraph 5.1;
provided, however, that if Executive is receiving disability payments
under Paragraph 4.2(b) the Company may not terminate this Agreement
under Paragraphs 5.1(c)(i),(ii), or (iii), or (h).
(e) Shall terminate upon Executive's reaching the normal
retirement date established by the Company for senior management
employees of the Company, but in no event earlier than the compulsory
retirement age permitted under federal or similar law for senior
management employees.
(f) May be terminated by the Company, for any or no reason, on
60 days' written notice to Executive; provided that if at the time of
such termination "Cause" exists and the written notice specified in
subparagraph (c) above is given, then such termination by the Company
shall be considered to be pursuant to subparagraph (c) above.
(g) May be terminated by Executive, for any or no reason, on
60 days' written notice to the Company.
5.2) Compensation Upon Termination of Executive's Employment. In the
event that Executive's employment with the Company terminates, the following
provisions shall govern as applicable:
(a) If termination occurs pursuant to Paragraph 5.1(a) (by
mutual written agreement) the agreement of the parties shall control.
(b) If termination occurs pursuant to Paragraph 5.1(b) (for
death), all benefits shall terminate as of the termination date, and
the base salary shall terminate as provided in Paragraph 2.2.
(c) If termination occurs pursuant to Paragraph 5.1(c) (for
Cause) or 5.1(h) (resign without Good Reason), all benefits shall
terminate as of the termination date, and the base salary shall be paid
to the date of termination as provided in Paragraph 2.2.
(d) If termination occurs pursuant to Paragraph 5.1(d)
(disability), the provisions of Paragraph 4.2 shall govern the
termination of benefits and base salary.
(e) If termination occurs pursuant to Paragraph 5.1(e)
(retirement), the provisions of Paragraph 5.2(b) shall govern the
termination of benefits and base salary.
(f) If termination occurs pursuant to 5.1(f) (by the Company
without Cause) then Executive's base salary shall be paid to the date
of termination as provided in Paragraph 2.2 and in addition:
(i) the Company shall pay Executive, as severance
pay, in accordance with the Company's normal payroll practices
for executive employees, such number of consecutive monthly
installments of his base salary in effect as of the date of
termination as is equal to the greater of (A) the number of
months remaining in the Term (without regard to renewals) of
this Agreement, or (B) nine (9).
(ii) Executive shall be entitled to continued
participation in hospital and medical plans and programs of
the Company for such period as is provided by law following
termination of Executive's employment, subject to Executive's
paying the employee portion of the cost of such participation
and subject to termination of participation upon Executive
becoming entitled to comparable benefits on subsequent
employment.
(g) If termination occurs pursuant to Paragraph 5.1(g) the
compensation provisions of Paragraph 5.2(c) shall apply.
(h) All payments made to Executive under this Paragraph 5.2
shall be reduced by amounts (i) required to be withheld in accordance
with federal, state and local laws and regulations in effect at the
time of payment, or (ii) owed to the Company by Executive for any
amounts advanced, loaned or misappropriated.
5.3) Return of the Company Property. In the event of termination of
Executive's employment all corporate documents, records, files, credit cards,
computer disks and tapes, computer access card, codes and keys, file access
codes and keys, building and office access cards, codes and keys, materials,
equipment and other property of the Company which is in Executive's possession
shall be returned to the Company at its principal business office on the date of
termination of Executive's employment, or within five days thereafter if
termination occurs without notice. Executive may copy, at Executive's expense,
documents, records, materials and information of the Company only with the
Company's express, written permission.
ARTICLE 6
Inventions, Plans and Ideas
6.1) Definition. "Inventions, plans and ideas" as used in this Article
6 mean any discoveries, ideas, plans and improvements (whether or not they are
in writing or reduced to writing or embodied solely in practices of the Company)
or works of authorship (whether or not they are or can be patented or
copyrighted) that Executive makes, authors, or conceives (either alone or with
others) and that:
(a) concern the Company's business or the Company's research
or development or planning that can be demonstrated to relate to the
Company's then-current business or any planned business discussed with
the Board of Directors which the Company is actively exploring; or
(b) result from and relate to any work Executive performs for
the Company which work also meets the criteria of subparagraph (a); or
(c) use the Company's trade secret information.
6.2) Property of the Company. Executive agrees that all "inventions,
plans and ideas" he makes during the term of this Agreement will be the
Company's sole and exclusive property. Executive will, with respect to any such
"invention, plan or idea":
(a) keep current, accurate and complete records which will
belong to the Company and be kept and stored on the Company's premises
while Executive is employed by the Company.
(b) promptly and fully disclose the existence and describe the
nature of the invention, plan or idea to the Company in writing (upon
request).
(c) assign, and Executive hereby does assign, to the Company
all of his rights to any such "invention, plan or idea", and any
applications which he may make for patents, copyrights, trademarks or
service marks in any country.
(d) acknowledge and deliver promptly to the Company any
written instruments, and perform any other acts necessary in the
Company's reasonable opinion, to preserve property rights in any
invention, plan or idea against forfeiture, abandonment or loss, and to
obtain and maintain letters patent and/or copyrights and/or marks on
any invention, plan or idea and to vest the entire right and title to
such "invention, plan or idea" in the Company.
NOTICE: Pursuant to Minnesota Statutes ss. 181.78, Executive is hereby notified
that this Article 6 does not apply to any invention for which no equipment,
supplies, facility, or trade secret information of the Company was used and
which was developed entirely on Executive's own time, and (1) which does not
relate (a) directly to the business of the Company or (b) to the Company's
actual or demonstrably anticipated research or development, or (2) which does
not result from any work performed by the employee for the Company.
6.3) Executive Claims. Executive does not have, and will not assert,
any claims to or rights under any "inventions, plans or ideas" as having been
made, conceived, offered or acquired by Executive prior to his employment by the
Company. Further, and without limiting the foregoing, Executive has contributed
and assigned, and hereby does contribute and assign, to the Company all
"inventions, plans and ideas" within the meaning of this Article 6.
ARTICLE 7
Confidential Information
7.1) Definition. "Confidential Information" as used in this Article 7
means information (a) that is not generally known to the public and (b) that is
proprietary to the Company or that the Company is obligated to treat as
proprietary. Confidential Information shall include, without limitation:
(i) trade secret information about the Company and its
products and services; and
(ii) Any information that the Company reasonably considers or
treats as Confidential Information, or that Executive actually knows or
reasonably should know that the Company considers or treats as
Confidential Information (whether Executive or others originated it and
regardless of how Executive obtained it).
7.2) Use Prohibited. Except as required in his duties to the Company,
Executive will never knowingly, either during or after his employment by the
Company, use or disclose Confidential Information to any person not authorized
by the Company to receive it, excluding Confidential Information (a) which
becomes publicly available through a source other than Executive, (b) which is
made public by the Company, (c) which is received by Executive after termination
of this Agreement from a third party who obtained the information on a
non-confidential basis from the Company, (d) for which disclosure thereof the
Company has consented to in writing, or (e) that Executive is compelled to
disclose in any judicial or administrative proceeding. Promptly upon termination
of Executive's employment with the Company, Executive will turn over to the
Company all records, documents, materials and any compositions, articles,
devices, apparatus and other items that disclose, describe or embody
Confidential Information, including all copies and reproductions thereof, in
Executive's possession, regardless of who prepared them.
7.3) Violation by Executive. If it is determined by an arbitration
proceeding or a final, non-appealable judgment of a court of law or equity that
Executive has breached Article 7 with regard to material information, the
Company shall be relieved of further severance payments to Executive and
Executive shall repay to the Company all severance payments previously received.
ARTICLE 8
Competitive Activities Prohibited
8.1) Prohibition; Duration. Executive agrees that, during his
employment with the Company and for any period for which Company is making (or
has made in the case of a Change of Control) severance payments to Executive
pursuant to this Agreement after termination of Executive's employment,
Executive will not alone, or in any capacity with another firm, individual or
person:
(a) directly or indirectly, whether as an employee, officer,
director, shareholder, (provided, however, that passive investments in
publicly traded securities not exceeding five percent of the issuer's
capital stock shall be permitted), partner, agent, owner,
representative, consultant or otherwise, engage in any activity, in any
state or foreign country, that competes with the Company's products or
services produced, sold or rendered in the ordinary course of the
Company's business as of the date of Executive's termination, or
products or services demonstrated to have been formally planned and
approved before the date of Executive's termination for production or
sale;
(b) in any way interfere or attempt to interfere with the
Company's relationships with any of its then-current customers,
suppliers, vendors or investors; or
(c) employ or attempt to employ any of the Company's
employees, or the employees of any enterprise managed or owned by the
Company on behalf of any other entity competing with the Company;
provided, however, that in the event Executive's severance
payments are paid in a lump sum as a result of termination after a
"Change of Control", the period during which the provisions of this
Section 8.1 shall apply will be one year.
All of the above activities are "Competitive Activities".
8.2) Exception. Nothing in Paragraph 8.1 shall restrict the Executive's
employment by, or association with, an entity, venture or enterprise which
engages in a business with a product or service competitive with any product or
service, or planned product or service per Paragraph 8.1(a), of the Company so
long as Executive's employment or association with such entity, venture or
enterprise is limited to work which does not directly involve products or
services which compete with any product or service offered, or planned to be
offered per Paragraph 8.1(a), by the Company at the date of Executive's
termination.
8.3) Violation by Executive. If it is determined by an arbitration
proceeding or a final non-appealable judgment of a court of law or equity that
Executive has breached Article 8 in a material manner the Company shall be
relieved of further severance payments to Executive, and Executive shall repay
to the Company all severance payments previously received.
8.4) Notice to New Employer. Executive will, prior to accepting
employment with any new employer, inform that employer of this Agreement and
provide that employer with a copy of Article 8 of this Agreement.
ARTICLE 9
Certain Company Remedies
9.1) Certain Company Remedies. The parties acknowledge that the Company
will suffer irreparable harm if the Executive breaches Paragraph 5.3 and/or
Articles 6, 7 and/or 8 of this Agreement, either during or after its term.
Accordingly, the Company shall be entitled to any right or remedy it may have,
under this Agreement or otherwise, at law or equity, including but not limited
to, an injunction, enjoining or restraining Executive from any violation of
Paragraph 5.3 and/or Articles 6, 7 and/or 8 of this Agreement.
9.2) Payment of Fees and Expenses. If either party initiates or becomes
a party to a formal proceeding in law or equity, or under Article 10, involving
this Agreement, and if either party obtains a substantial portion of the relief
requested by that party (the "prevailing party"), then the non-prevailing party
shall pay all of its and the prevailing party's reasonable costs and expenses,
including reasonable attorneys' fees and expenses, incurred with respect to such
proceeding. If neither party obtains a substantial portion of the relief
requested each shall bear its/his own expenses. In the event Executive is
terminated pursuant to Paragraph 5.1 (c) and determines to challenge the
Company's determination of "Cause", the Company and Executive shall each bear
its/his own expenses in connection with any proceeding initiated by Executive
with respect to the determination as to "Cause".
ARTICLE 10
Arbitration
10.1) Agreement to Arbitrate. With the exception of the Company's
rights and remedies in connection with breaches by Executive of Paragraph 5.3
and/or Articles 6, 7 and/or 8 of this Agreement, all disputes or claims arising
out of or in any way relating to this Agreement, including the making of this
Agreement, shall be submitted to and determined by final and binding arbitration
under the rules of the American Arbitration Association. Arbitration proceedings
may be initiated by the Company or Executive upon notice to the other and to the
American Arbitration Association, and shall be conducted by three arbitrators
under the rules of the American Arbitration Association in Minneapolis,
Minnesota; provided, however, that the Company and Executive may agree,
following the giving of such notice, to have the arbitration proceedings
conducted with a single arbitrator. The notice must specify, in general, the
issues to be resolved in any such arbitration proceeding. The arbitrators shall
be selected by agreement of the Company and Executive from a list of 12 or more
arbitrators proposed to the Company and Executive by the American Arbitration
Association, or may be persons not on such list as agreed to by the Company and
Executive. If the Company and Executive fail to agree on one or more of the
persons to serve as arbitrators within 30 days of delivery of the list of
proposed arbitrators by the American Arbitration Association, then at the
request of the Company or Executive such arbitrators shall be selected at the
discretion of the American Arbitration Association.
In addition to any other procedures provided for under the rules of the
American Arbitration Association, upon written request, each party shall, at
least 14 days prior to the date of any hearing, provide to the opposite party a
copy of all documents relevant to the issues raised by any claim or counterclaim
and a list of all witnesses to be called by that party at the hearing.
10.2) Costs. The costs of proceedings under Article 10 shall be paid in
accordance with the provisions of Article 9.
ARTICLE 11
Indemnification
11.1) As to acts or omissions of Executive which are within the scope
of Executive's authority as an officer and/or director of the Company and/or any
affiliate of the Company, the Company shall indemnify Executive, and his legal
representatives and heirs to the maximum extent permitted by Minnesota law.
ARTICLE 12
Miscellaneous
12.1) Successors and Assigns. This Agreement is binding on and inures
to the benefit of the Company, and its successors and assigns. The Company
agrees that the Company shall be deemed to have materially breached this
Agreement if its successor or assign does not assume all of the Company's
material obligations under this Agreement. The rights and obligations of
Executive under this Agreement are personal and may not be assigned or
transferred without the express written consent of the Company.
12.2) Modification. This Agreement supersedes all prior agreements and
understandings between the parties. This Agreement may be modified or amended
only by a writing signed by the Company and Executive.
12.3) Waivers. No failure or delay by either the Company or Executive
in exercising any right or remedy under this Agreement shall be deemed a waiver
of any provision of this Agreement. Nor shall any single or partial exercise by
either the Company or Executive of any right or remedy under this Agreement
preclude either from otherwise or further exercising rights or remedies granted
under this Agreement.
12.4) Notices. Any and all notices referred to herein shall be deemed
properly given only if in writing and delivered personally or sent postage
prepaid, by certified mail, return receipt requested, as follows:
(a) To the Company, to the attention of the Company's Chief
Financial Officer, at its office set forth on page 1 of this Agreement
or at such other address as the Company may specify in writing to
Executive, with a copy to each member of the Company's Board of
Directors, and to Xxxxxxxxxx & Xxxxx, P.A., 1100 International Centre,
000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxx
X. Xxxxx.
(b) To Executive at his home address as it then appears on the
records of the Company, it being the duty of the Executive to keep the
Company informed of his current home address at all times.
The date on which notice to the Company or Executive shall be deemed to
have been given if mailed as provided above shall be the date on the certified
mail return receipt. Personal delivery to Executive shall be deemed to have
occurred on the date notice was delivered to Executive personally or deposited
in a mail box or slot or left with security or administrative personnel, at
Executive's residence by a representative of the Company or any messenger or
delivery service.
12.5) Action by Board of Directors. Any action required by the
Company's Board of Directors under this Agreement may be taken by majority vote
of a duly authorized committee having authority over the matter in question or
by a majority of the remaining members of the Board of Directors, not counting
Executive, then serving.
12.6) Judicial Review; Severability. In the event that a court of
competent jurisdiction determines that any of the provisions of this Agreement
are unreasonable, it may limit such provision to the extent it deems reasonable,
without declaring the provision or this Agreement invalid in its entirety. This
provision shall not be construed as an admission by the Company, but is only
included to provide the Company with the maximum possible protection for its
business, Confidential Information, Inventions, trade secrets and data,
consistent with the right of the Executive to earn a livelihood subsequent to
the termination of his employment.
To the extent any portion of any provision of this Agreement shall be
deemed invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and the remainder of this Agreement shall be
unaffected and shall continue in full force and effect.
The Company and Executive desire that this Agreement shall be given the
construction which renders its provisions valid and enforceable to the maximum
extent, not exceeding its express terms, permissible under applicable law.
12.7) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Minnesota.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement on July 1, 1999 to be effective as of the effective date set forth
above.
Company: CORVU CORPORATION
By:
Its
Executive:
Xxxxxx XxxXxxxxx ("Executive")
