ADAYTUM
SOFTWARE
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated the 16th day of March 1998, is by and
between ADAYTUM, INC. ("Company"), a Delaware corporation, and XXXXXXX XXXX
("Employee").
In consideration of the parties' mutual promises contained in this
Agreement, the Company and Employee agree as follows:
ARTICLE I. DEFINITIONS
The following terms shall have the meanings set forth below, unless the
context clearly requires otherwise.
1.1. "Agreement" means this Employment Agreement, as from time to time
amended.
1.2 "Base Salary" means the total annual cash compensation payable
on a regular periodic basis, without regard to voluntary or mandatory
deferrals, as set forth at paragraph 3.1 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.
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 our clients, customers and business contacts, and
entrusted to our 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 or 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 Xxxxxxx Xxxx.
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 thrift, pension, profit
sharing, deferred compensation, medical, dental, disability, accident, life
insurance, automobile allowance, perquisite, fringe benefit, vacation, sick or
parental leave, severance or relocation plan or policy or any other agreement,
plan, program, policy or arrangement intended to benefit employees or executive
officers of the Company.
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.
ARTICLE II. EMPLOYMENT, DUTIES AND TERM
2.1 QUALIFICATIONS AND REPRESENTATIONS. The Employee warrants and
confirms as conditions of this Agreement and of Employee's employment that the
particulars contained in any curriculum vitae supplied and of Employee's
qualifications and all other representations (whether verbal or in writing) made
to the Company in relation to Employee's employment by the Company or in
connection with this Agreement are true and not misleading and that Employee is
free to enter into and perform this Agreement and that by so doing Employee will
not be in breach of any obligation to any third party.
2.2 EMPLOYMENT. Upon the terms and conditions set forth in this
Agreement, the Company hereby employs Employee, and Employee accepts such
employment, as Controller of the Company. Except as expressly provided herein,
termination of this Agreement by either party or by mutual agreement of the
parties shall also terminate Employee's employment by the Company.
2.3 DUTIES. During the term of this Agreement, and excluding any
period of vacation, or other leave to which Employee is entitled, Employee
agrees to devote reasonable attention and time during normal business hours
to the business and affairs of the Company any, 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 the term of this Agreement, Employee shall:
(a) not directly or indirectly be in any manner engaged, concerned
or interested in any other trade, business, profession or
occupation whatsoever except:
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(i) with the written consent of the Chief Executive
Officer and subject to any terms and conditions which
he imposes;
(b) promptly and faithfully comply with all directions given by
the Company;
(c) provide to the Company such information relating to its
affairs as it may from time to time request;
(d) not 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
his normal duties or which is of an unusual onerous
or long-term nature;
(e) 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.
2.4 TRAVEL. Employee shall travel both nationally and internationally as
Employee's duties may reasonably demand but shall not be obliged to
reside outside the U.S.
2.5 DRIVER'S LICENSE. It is a condition of the Employee's employment that
Employee have and retain a current driver's license and if the
Employee's driver's license is suspended, revoked or cancelled for any
period the Company reserves the right to terminate this Agreement.
2.6 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.
2.7 RETURN OF PROPRIETARY PROPERTY. Employee agrees that all property in
Employee's possession belonging to Company, including without
limitation, all documents, reports, manuals, memoranda, computer
print-outs, customer lists, credit cards, keys,
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identification, products, access cards, automobiles, computer hardware,
mobile telephones, computer software, correspondence, and all other
property relating in any way to the business of the Company are the
exclusive property of the Company, even if Employee authored, created
or assisted in authoring or creating such property. Employee shall
return to the Company all such documents and property immediately upon
termination of employment or at such earlier time as the Company may
request.
ARTICLE III. COMPENSATION, BENEFITS AND 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 that
is not less than One Hundred Ten Thousand and no/100 Dollars ($110,000.00) until
such time that a higher annual rate as may from time to time be approved by the
Chief Executive Officer, such Base Salary to be paid in substantially equal
regular periodic payments in accordance with the Company's regular payroll
practices. If Employee's Base Salary is increased from time to time during the
term of Employee's employment under this Agreement, the increased amount shall
become the Base Salary for the remainder of the term and any extensions of
Employee's term of employment under this Agreement.
3.2 BONUS. In addition to Employee's other remuneration hereunder, the
Employee may receive a bonus to be computed and paid by the Company in
accordance with the First Schedule attached hereto provided that the Company may
terminate any bonus scheme at any time without replacing it with any other
scheme or incentive, and further the amount or nature of any bonus or scheme
determined by the Board for any period shall not be any indication or
requirement that any similar bonus or scheme will be applicable to any
subsequent period.
3.3 SHARE PLANS. At the sole discretion of the Board in addition to
Employee's other remuneration hereunder the Employee may be entitled to
participate in such Plans as the Board shall from time to time establish.
3.4 VACATION AND ILLNESS. The Company's vacation year runs from
January 1st to December 31st and the Employee may (and if directed by the
Board shall) take a vacation or vacations totaling twenty five (25) working
days in each vacation year (in addition to public holidays) to 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 vacations from time to
time established by the Company.
ACCRUAL. Vacation entitlement will accrue from day to day
during each vacation year and the entitlement to accrued vacation pay upon
Termination will be in proportion to the period of employment during the
vacation year. Upon termination the Employee shall reimburse the Company for
vacation taken in excess of Employee's accrued entitlement.
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NO CARRY-FORWARD. The Employee may not without the written
consent of the Company carry forward any unused vacation entitlement to any
subsequent year.
ILLNESS. If Employee is unable to perform Employee's duties
hereunder because of physical or mental illness, bodily injury or disease, the
Company will deduct the days taken as absent from the total of vacation days
available for that vacation year.
3.5 BUSINESS EXPENSES. The Company shall reimburse the Employee (in
accordance with the relevant policies established by the Company from time to
time) all travelling, hotel and other out-of-pocket expenses properly and
reasonably incurred exclusively for and in the course of performing Employee's
duties.
ARTICLE IV. TERMINATION
4.1 TERMINATION. Subject to the respective continuing obligations of
the parties pursuant to Articles V and VI, this Article IV sets forth the terms
for termination of Employee's employment under this Agreement.
4.2 TERMINATION IN THE EVENT OF DEATH. The term of Employee's
employment under this Agreement shall terminate in the event of Employee's
death.
4.3 TERMINATION WITH OR WITHOUT CAUSE. The Company may terminate this
Agreement and the employment of the Employee with or without cause, at any time
and for any or no reason.
4.4 TERMINATION BY EMPLOYEE. The Employee may terminate this Agreement
and employment at any time and for any or no reason.
4.5 SEVERANCE. In the event Company terminates Employee's employment
pursuant to Paragraph 4.3 without cause, it shall pay Employee severance pay in
accordance with a severance agreement to be negotiated between Employer and
Company.
4.6 TERMINATION BY MUTUAL AGREEMENT. The parties may terminate
Employee's employment under this Agreement at any time by mutual written
agreement.
ARTICLE V. CONFIDENTIAL INFORMATION
5.1 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 this Agreement
and after termination without limit of time):
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(a) not disclose, divulge or communicate to any person (save to
those officials of the 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 competent jurisdiction) any
secret, private or confidential information whatsoever of any
of the Companies or of any customer or client of any of the
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
any of the 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 any of the Companies;
(d) sign such confidentiality agreements in favor of any 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 VI. NON-COMPETITION AND NON-SOLICITATION
6.1 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 the 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 V. 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.
6.2 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 one year following the
termination of this Agreement for any reason whatsoever, Employee shall not
solicit, or assist anyone else in the solicitation of, any
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of the Company's then-current employees to terminate their employment with
the Company and to become employed by any business enterprise with which the
Employee may then be associated, affiliated or connected.
6.3 NON-SOLICITATION OF CLIENTS. For one year following termination of
employment, Employee shall not use his knowledge of the business requirements of
or canvass 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 termination, a client or customer of the Company or Associated
Companies with which Employee was concerned during the course of Employee's
office or employment.
6.4 POST-EMPLOYMENT OBLIGATIONS. Following termination, the Employee
will not directly or indirectly:
(a) represent himself/herself or permit himself/herself 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;
(b) represent, promote, advertise or refer to his/her previous
connection with the Company or Associated Companies in such a
way as to seek to utilize any goodwill of any of the Companies
but for the avoidance of doubt the Employee shall be entitled
to refer to his previous connection with the Companies on any
curriculum vitae or application for employment;
(c) 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 Companies which is
calculated to cause confusion with such a name, style, logo or
image or infer a connection with any of the Companies.
ARTICLE VII. INTELLECTUAL PROPERTY
7.1 ACKNOWLEDGMENT. The Employee acknowledges that his/her 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.
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7.2 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 therefor.
7.3 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.
7.4 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.
7.5 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 VIII. GENERAL PROVISIONS
8.1 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.
8.2 DISPUTES. Any dispute, controversy or claim for damages or other
relief arising under or in connection with this Agreement shall, in the
Company's sole discretion, be settled exclusively by arbitration in Minneapolis,
Minnesota by a panel of three (3) arbitrators in accordance with the rules of
the American Arbitration Association then in effect, or by court proceeding.
Judgment may be entered on an arbitrators' award in any court having
jurisdiction.
8.3 REASONABLENESS OF RESTRICTIVE COVENANTS. Employee and the Company
hereby stipulate that the prohibitions contained in Articles V and VI of this
Agreement are reasonable, and each specifically waives any objection to the
reasonableness of said prohibitions.
8.4 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 V and VI of this Agreement by specific performance and by
injunctive relief against Employee and any other
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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.
8.5 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.
8.6 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.
8.7 PREVIOUS AGREEMENTS. This Agreement operates as from the
Commencement Date in substitution for and to the exclusion of any Employment
Agreement previously in force between the Company and/or Associated Companies,
and Employee.
8.8 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.
8.9 CAPTIONS. The various headings or captions in this Agreement are
for convenience only and shall not affect the meaning or interpretation of this
Agreement.
8.10 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 State of Minnesota (without regard to the conflict of
laws, rules or statutes of any jurisdiction), and subject to paragraph 8.2, any
and every legal proceeding arising out of or in connection with this Agreement
shall be brought in the appropriate courts of the State of Minnesota, each of
the parties hereby consenting to the exclusive jurisdiction of said courts for
this purpose.
8.11 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.
8.12 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
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or partial exercise of any right or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy granted
hereby or by any related document or by law.
8.13 MODIFICATION. This Agreement may not be modified or amended except
by written instrument signed by the parties hereto.
8.14 ENTIRE AGREEMENT. This Agreement and attached offer letter and
acceptance letter constitutes the entire agreement and understanding between the
parties hereto in reference to all the matters herein agreed upon.
8.15 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.
8.16 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 V and VI) 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 day and year first above
written.
XXXXXXX X. XXXX COMPANY
ADAYTUM, INC., a Delaware corporation
/s/ Xxxxxxx X. Xxxx
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Address: By: /s/ J.D.G. Haddleton
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0000 Xxxxx Xxxxx Xxxx Title: Chief Executive
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Xxxxx, XX 00000 Address:
------------------------------ Suite 360
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
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