Exhibit 99.2
This Agreement effective the 31st
day of October, 2005, (“Effective Date”) between Cognos Incorporated
(“Cognos”) and Xxxx Xxxx of the City of Ottawa in the Province of Ontario
(“You”) is entered into (a) in recognition of the key role you play as a
senior member of the executive at Cognos and (b) to restate and amend the terms and
conditions of your employment with Cognos as of the Effective Date.
If there is any conflict between this
Agreement and your offer letter, your offer letter will prevail.
The parties agree as follows:
| 1.01 |
Cognos will employ you as Senior Vice-President,
Corporate Development at its office at 0000 Xxxxxxxxx Xxxxx xx Xxxxxx, Xxxxxxx,
and you accept that employment under the terms set out in this Agreement. In the
course of those duties and subject to your rights under Section 11 of this Agreement, you
may be appointed to positions with any one of the associated companies of Cognos and,
despite the foregoing title, you may be assigned additional or other duties not
inconsistent with the requirements of your position. |
| 1.02 |
Subject to Section 11.03 and Schedule I and your rights as described therein, Cognos
reserves the right to transfer you, on a temporary or permanent basis, change your
duties, responsibilities, or reporting relationships and the location of your employment,
or as otherwise provided in this Agreement, and those changes will not affect any other
provision of this Agreement. Cognos will give you reasonable notice of these changes. |
| 1.03 |
You will devote your full time and attention to the business and affairs of Cognos and
its affiliates and will not, without consent in writing of Cognos (which shall not be
unreasonably withheld), undertake any other business or occupation or become a director,
officer, partner, employee or agent of any other company, firm or individual. |
| 1.04 |
You may, without the necessity of obtaining any consent, undertake
activities of a
charitable or community nature and serve in any part-time or temporary post with any
charitable organization or professional association, as long as those activities, in the
sole discretion of Cognos, do not impair your ability to fulfill your obligations in this
Agreement. |
| 1.05 |
You will well and faithfully serve Cognos and its associated
companies and use your best efforts to promote their interests. |
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| 2. |
Term: This Agreement replaces, in its entirety, the employment agreement between
you and Cognos dated May 25, 2004, and any amendments to it. Your employment
will continue until terminated in accordance with the provisions of this
Agreement. In keeping with our Bridging of Service Policy, all past employment
with Cognos has been tabulated and your net credited service date calculated to
be February 25, 2001 (“Service Date”). No employment
with a previous employer, other than Cognos, counts toward your calculated
Service Date. |
| 3. |
Relocation: You acknowledge that Cognos carries on its operations worldwide and during
the course of your employment the location of your employment and reporting
arrangements may be changed by Cognos. Your relocation expenses will be
reimbursed in accordance with the prevailing Cognos policy. |
| 4. |
Hours of Work: Your days and hours of work will be Monday to Friday, 7.5 hours
per day. These days and hours are subject to change by Cognos to meet its
needs. You acknowledge that your duties may require extra or irregular hours to
meet or fulfill company requirements. There is no compensation for overtime
except when authorized in accordance with prevailing Cognos policy. |
| 5. |
Compensation & Performance Appraisal: |
| 5.01 |
Your base salary will be as set out in your Offer Letter and subsequently will be
reviewed in accordance with prevailing Cognos practice and policies. Your salary will be
deemed to accrue from day to day and will be payable in equal semi-monthly installments
in accordance with prevailing Cognos policies or practice. |
| 5.02 |
You have no contractual entitlement to any increased or additional compensation
(including overtime) except in strict compliance with your compensation plan and there is
no right to the continuation or renewal of any particular plan. You will be paid net of
any statutory or authorized deductions. You authorize Cognos to deduct from compensation
payable to you the full amount of any debts or advances owed by you to Cognos. |
| 6. |
Travel & Expenses: Your duties may require you to travel away from home on and
incur expenses in connection with that travel or other duties under this
Agreement. Cognos will reimburse you for all reasonable expenses incurred for
travel, accommodation and other incidental costs in accordance with its
prevailing travel and expenses policies. |
| 7.01 |
You will be entitled to receive all benefits generally available to Cognos employees in
comparable positions. |
| 7.02 |
You will be entitled to annual vacation of 20 working days and will be taken at a time
best suited to the needs of Cognos, as determined by your immediate superior. Otherwise,
your vacation will be determined in accordance with the prevailing Cognos policy. |
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| 8. |
Personnel
Policies: In addition to the provisions of this Agreement, you will use
your best efforts to adhere to all policies of general applicability to Cognos
employees. Cognos may amend or revoke the provisions of these policies as may
be necessary. You will be given reasonable notice of any policy amendment. |
| 9. |
Confidential Information and Inventions: |
| 9.01 |
During the course of your duties, you will acquire information about certain matters that
are confidential to Cognos (including, for the purpose of this Agreement, any affiliated
companies), and that is the exclusive property of Cognos, including, but not limited to:
(a) product design and development information, (b) names, addresses, buying habits and
preferences of current customers of Cognos as well as prospective customers, (c) pricing
and sales policies, techniques and concepts, and (d) trade secrets and other confidential
information concerning the business operations or affairs of Cognos, all of which
information is “Confidential Information” for the purposes of this Agreement.
Confidential Information does not include: (e) information generally available to or
known to the public; (f) information previously known to you; (g) information
independently developed by you outside the scope of this Agreement; or (h) information
lawfully disclosed to you by a third party. |
| 9.02 |
You acknowledge that Confidential Information, if disclosed, could be used to the
detriment of Cognos. Accordingly, you will not disclose any Confidential Information to
any third party either: (a) during the term of your employment with Cognos (whether under
this Agreement or any predecessor or successor to it), except as may be necessary for you
to properly discharge your duties under this Agreement, or (b) following the termination
of your employment, however caused, except with the written permission of Cognos. Any
obligations of confidentiality arising under previous agreements with Cognos are
continued and amended to conform with the terms of this Agreement. The foregoing
restriction does not apply to any information or knowledge that becomes part of the
public domain other than by unauthorized disclosure by you. |
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| 9.03 |
Any inventions, discoveries, or copyrightable works developed or contributed to by you
during the course of your duties, whether under this Agreement or any predecessor or
successor to it, including without limitation: software source or object code (and any
underlying algorithms or other components), product or promotional material, manuals,
contractual documentation, and training or education materials (“Works”), are
the sole and exclusive property of Cognos including, without limitation, all copyright
and other intellectual property rights in or to the Works. You waive any and all moral
rights you may have in any Works. You will execute any additional documents deemed
necessary by Cognos to apply for, convey or confirm its rights in or to the Works,
whether during or after the termination of this Agreement, however caused. You warrant
that any Work does not infringe the copyright or other rights of any third party and that
the rights you grant to Cognos in this Agreement are vested in you absolutely and you
have not previously assigned, licensed, or in any way encumbered the Work. This Section
is binding on your heirs, successors and assigns and will survive the termination of this
Agreement. |
| 10. |
Computer
Security: It is the policy of Cognos to adhere strictly to the licensing
conditions of any software that it uses. You are required to comply with this
policy. You will not copy or distribute for your own use or for the use of any
other person or company any software used or developed by Cognos without (a)
obtaining the authorization of your supervisor and (b) taking all reasonable
precautions to ensure that your use of the software neither corrupts nor
destroys any existing software or data. |
| 11.01 |
You may resign your employment voluntarily upon giving thirty (30) days prior written
notice to Cognos. Cognos may waive the said notice by providing you with pay in lieu of
notice. Upon resignation, you will have no entitlement to compensation except for unpaid
Base Salary and vacation earned to the effective date of resignation. All of your
benefits will cease upon the effective date of your resignation. For greater certainty,
termination by you for Good Reason shall not constitute a voluntary resignation. |
| 11.02 |
Cognos may terminate your employment at any time for Just Cause without notice or
compensation in lieu of notice except for unpaid Base Salary and vacation earned to the
date of termination. All of your benefits will cease immediately upon termination of your
employment for Just Cause. |
| 11.03 |
If your employment is terminated by Cognos without Just Cause (including constructive
dismissal) or you terminate your employment for any Good Reason, then the following
provisions shall apply: |
| |
(a) |
Cognos will continue to pay your monthly Base Salary and monthly payments equal
to one twelfth (1/12) of your base target bonus (without applying any
applicable adjustments for the overall corporate performance of Cognos
Incorporated such as pursuant to the “Share In Success
Program” of Cognos Incorporated in effect as of the Effective Date or any
replacement program), in each case less statutory deductions, for
eighteen (18) months from the date of termination. Cognos may elect to
pay this as a single lump sum payment; |
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| |
(b) |
Cognos will continue, to the extent permitted by its carriers, all benefits for
eighteen (18) months from the date of termination. In the event that
Cognos cannot continue to provide any benefit, it shall compensate you for the
reasonable cost of your obtaining the said benefit to the extent you can
obtain such benefit from a similar carrier; |
| |
(c) |
You shall be entitled to be paid your target bonus as at the date of
termination (together with any applicable adjustments for the overall
corporate performance of Cognos Incorporated such as pursuant to the “Share
In Success Program” of Cognos Incorporated in effect as of the
Effective Date or any replacement program), pro-rated for the period up to the
date of termination of employment (such payment to be determined and
made at the times that Cognos generally determines and pays bonuses to
its Senior Executives); and |
| |
(d) |
Notwithstanding the terms of any plan or agreement to the contrary, all of your
entitlements or rights pursuant to any share option plan shall
continue to vest during the eighteen (18) month period following the date of
termination, and once vested shall be exercisable in accordance with the
terms of the applicable plan. |
| 11.04 |
In the event that your employment is terminated by Cognos without Just Cause or in the
event that you terminate your employment for Good Reason and if such termination by
Cognos or by you occurs on or within twelve (12) months following the date of any Change
of Control, then, notwithstanding the terms of any plan or agreement to the contrary, all
of your entitlements on rights pursuant to any share option plan shall
automatically become fully vested, and once vested shall be exercisable in accordance
with the terms of the applicable plan. |
| 11.05 |
The terms “Good Reason”, “Just Cause” and “Change of Control” will
have the meanings ascribed thereto in Schedule 1 of this Agreement. |
| 11.06 |
Coincident with, or immediately following termination of your employment, for whatever
reason, you will surrender to Cognos any documents or electronic media containing
Confidential Information referred to in Section 9, as well as any other property of
Cognos in your control or possession (including without limitation: vehicles, access
passes, equipment, credit cards, keys, books, records, reports, files, manuals, and
literature) in good condition, normal wear and tear excepted. |
| 11.07 |
Except to the extent contemplated in Sections 11.03(a) and 11.03(c), above, you shall not
be entitled to any bonus or incentive payment which is not earned as of the date of
termination of your employment. |
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| 11.08 |
Immediately following termination of your employment, for whatever reason, you will repay
any outstanding debts or advances owing by you to Cognos and you authorize Cognos to
deduct the amount of those debts or advances from any compensation amount payable to you
following your termination. For greater certainty, any unearned vacation taken will
constitute an advance owed by you to Cognos and any incentive payment, signing bonus or
payment of relocation and/or immigration expenses which becomes repayable due to
termination of employment, shall constitute a debt owed by you to Cognos. |
| 11.09 |
You will not at any time after termination of your employment represent yourself as being
in any way connected or interested in the business of Cognos or any of its group
companies worldwide. |
| 12.
|
Non-Solicitation of Employees: You agree that you will not, during your
employment and for the period ending eighteen (18) months after the date your employment
is terminated, without the written consent of Cognos, directly or indirectly (a) employ
or retain as an independent contractor any employee of Cognos Incorporated or any
subsidiary or induce or solicit, or attempt to induce, any such person to leave his or
her employment, (b) contact or solicit any designated customers of Cognos Incorporated or
any subsidiary for the purpose of selling to those designated customers any products or
services which are the same as, or competitive with, the products or services sold or
licensed by Cognos Incorporated or any subsidiary. For the purpose of this section, a
“designated customer” means a person who was a customer of the Cognos
Incorporated or any subsidiary at any time during the twelve (12) months preceding the
date that your employment terminated. |
| 13. |
Non-Competition: You will not, during your employment and for the period ending twelve (12)
months after the date your employment is terminated, directly or indirectly or
in any manner whatsoever, including either individually, or in partnership,
jointly or in conjunction with any other person, or as principal, agent, owner,
consultant, contractor, employee, executive, officer, director, advisor or
shareholder: (a) be engaged in any undertaking, or (b) have any financial or
other interest (including an interest by way of royalty or compensation
arrangements) in or in respect of the business of any person which carries on a
business; or (c) accept employment with, advise, render or provide services to,
lend money to or guarantee the debts or obligations of any person or entity
that carries on a business or undertaking anywhere, that is in competition with
the products or services created, developed or under development, manufactured
or planning to be manufactured, marketed or planning to be marketed,
distributed or planning to be distributed, sold or planning to be sold, by
Cognos Incorporated or any subsidiary at the time of your termination or within
the six (6) month period prior to that date. Despite the above, you may own not
more than five percent (5%) of any class of securities of an entity, the
securities of which are listed on a recognized stock exchange or traded in the
over the counter market in the United States or Canada, that carries on a
business which is the substantially same as or which competes with the business
of Cognos Incorporated or any subsidiary or any of its subsidiaries. |
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| 14. |
Non-Disparagement: In
further consideration of the amounts and rights granted or received or to be
granted or received under this Agreement, you will not, during the twelve (12)
month period following the termination of your employment (howsoever caused),
utter, publish or broadcast any statements that disparage Cognos Incorporated
or any subsidiary (including its subsidiaries) or be critical in any manner or
fashion of Cognos or its business, including without limitation, its business
strategy, products, management or employees. |
| 15. |
Legal
Assistance: You will, during this Agreement and for a period two (2) years
following its termination (however caused), supply such information and render
such assistance as may be reasonably required by Cognos or any affiliated
company in connection with any legal or quasi-legal proceeding to which either
is or becomes a party. The foregoing will be at the full expense of Cognos,
including reasonable compensation and the expense of seeking the advice of
counsel in relation to such proceedings. |
| 16. |
Assignment
of Rights: The rights accruing to Cognos under this Agreement will pass to
its successors or assigns. Your rights under this Agreement are not assignable
or transferable in any manner except as required or permitted by operation of
law. |
| 17. |
Notices: Any
notice required or permitted to be given under this Agreement will be given in
writing by personal delivery, registered mail or by facsimile, to you at your
last known address and to Cognos at its head office to the attention of the
Chief Legal Officer. |
| 18. |
Severability: If
any provision or part of this Agreement is deemed, or found to be, void,
unenforceable or invalid by a court of competent jurisdiction, its remaining
provisions or parts will remain in full force and effect. |
| 19. |
Amendment
of Agreement: Any amendment or modification of this Agreement will be in
writing and signed by the parties or it will have no effect. |
| 20. |
Governing
Law & Arbitration: Subject to the provisions of this Section, this
Agreement will be governed by and construed in accordance with the laws of
Ontario or if your office is not located there, in accordance with the
jurisdiction of the location of the office where you regularly perform your
duties. |
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IN WITNESS the parties have
executed this Agreement as a deed with effect as of the Effective Date.
COGNOS INCORPORATED:
| By: /s/
Xxx Xxxx
|
|
Chief Executive Officer |
|
November 15, 2005 |
| Xxx Xxxx |
|
Title |
|
Date |
|
EMPLOYEE:
| /s/
Xxxx Xxxx
|
|
Xxxxxxx 00, 0000 |
| Xxxx Xxxx |
|
Date |
|
|
| WITNESS: |
|
| /s/
Xxxxx Xxxxxxxx
|
|
October 28, 2005 |
| Name |
|
Date |
|
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SCHEDULE 1
(DEFINITIONS)
| 1. |
“Change of Control” means: |
| |
i. |
Cognos Incorporated (hereinafter the “Corporation” for the purposes of this
Schedule) is amalgamated, merged, consolidated or reorganized into or with another
corporation or other legal person (excluding an Affiliate of the Corporation), and as a
result the holders of the voting shares immediately prior to that transaction hold less
than a majority of the voting shares after that transaction; |
| |
ii. |
any individual, entity or group acquires or becomes the beneficial owner of, directly or
indirectly, more than 50% of the voting securities of the Corporation, whether through
acquisition of previously issued and outstanding voting shares, or of voting shares that
have not been previously issued, or any combination thereof, or any other transaction of
similar effect; |
| |
iii. |
the Corporation sells or otherwise transfers all or substantially all of its assets to any
other corporation or other legal person, and as a result the holders of voting shares
immediately prior to that transaction hold less than a majority of the voting shares of
the acquiring corporation or person immediately after such transaction; |
| |
iv. |
more than 50% of the voting shares become subject to a voting trust; |
| |
v. |
a report is filed pursuant to the Canada Business Corporations Act or under the
Securities Act, Ontario or the Securities Exchange Act of 1934, as
amended, disclosing that any person (as defined in the applicable legislation) has become
the beneficial owner of securities representing more than 50% of the voting shares; or |
| |
vi. |
if, during any period of two consecutive years, the individuals who at the beginning of
that period are the directors of the Corporation cease for any reason to be at least a
majority of the membership of the Board, unless the election, or the nomination for
election by the Corporation’s shareholders, of each director of the Corporation first
elected during that period was approved by a vote of at least two-thirds of the directors
then still in office who were also directors of the Corporation at the beginning of that
period. |
Provided that a Change in Control is
deemed not to occur solely because any one of the following entities either files or
becomes obligated to make a filing or submit a report contemplated above, namely: (i)
Corporation, (ii) an entity in which Corporation directly or indirectly beneficially owns
50% or more of the voting securities, (iii) any Corporation sponsored employee stock
ownership plan or any other employee benefit plan of Corporation, or (iv) any corporation
or legal person similar to the foregoing which is approved by the Board of Directors of
Corporation prior to the occurrence of the event that, absent such approval by the Board
of Directors of Corporation, would have constituted a Change in Control.
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| 2. |
For the purposes of this agreement “Good Reason” means the occurrence of any of the
following: |
| |
i. |
Without your express written consent, the assignment to you of any duties
materially inconsistent with your position, duties and responsibilities with
Cognos, except in connection with the termination of your employment for Just
Cause or as a result of your death, disability or retirement; |
| |
ii. |
any material reduction in your annual Base Salary, benefits or perquisites, not
similarly applied to all senior executives of the Corporation; |
| |
iii. |
a material reduction in your ability to earn incentive compensation not
similarly applied to all senior executives of the Corporation excluding a
reduction caused by the failure of Cognos or you to meet incentive compensation
targets or goals; |
| |
iv. |
the failure to continue your participation in any share option, share purchase,
profit-sharing, bonus or other incentive compensation plan not similarly applied
to all senior executives of the Corporation unless a plan providing a
substantially similar opportunity is substituted; and |
| |
v. |
the location of the Cognos’ facilities where you are based being relocated
(a) more than 50 km from its current location and (b) more than 50 km
further from your residence. |
| |
i. |
the willful failure by you to perform your duties (other than by reason of any
bona fide disability) after having been notified by Cognos of the willful
failure and being given a reasonable opportunity to rectify and discontinue such
failure; |
| |
ii. |
your misconduct involving the property, business or affairs of Cognos, or in the
carrying out of your duties or your theft, fraud or dishonesty; |
| |
iii. |
your material breach of this Agreement; or |
| |
iv. |
any other conduct by you that would be determined by the courts of Ontario
to constitute just cause from time to time. |
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