EXHIBIT 10.21
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PERITUS SOFTWARE SERVICES, INC.
EMPLOYMENT AGREEMENT
Agreement made as of the 27/th/ day of January, 1997 (the "Effective
Date"), by and between Peritus Software Services, Inc., a Massachusetts
corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Employee").
The Company desires to employ the Employee, and the Employee desires to be
employed by the Company. In consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
I. Titles and Reporting Responsibility
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The Employee's title will be Vice-President. The Employee will report
to the President.
II. Term of Employment
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The Company hereby agrees to employ the Employee and the Employee hereby
accepts employment with the Company for a period (the "Employment Period")
commencing on January 27/th/, 1997 and ending upon the termination of the
Employee's employment pursuant to the provisions of Section VII below. This
Agreement shall remain in full force and effect unless and until terminated in
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accordance with Section VII of this Agreement.
III. Responsibilities of the Employee
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The Employee agrees to undertake the duties and responsibilities
inherent in the position described in Section I above and such other duties and
responsibilities as the Company or its designee shall from time to time
reasonably assign. The Employee agrees to devote his entire business time,
attention and energies to the business and interests of the Company during the
term of this Agreement with the exception of existing non-competing advisory
board of director-level relationships, provided that such relationships are
fully disclosed to Peritus. The Employee agrees to abide by the rules,
regulations, instructions, personnel practices and policies of the Company and
any changes therein which may be adopted from time to time by the Company.
IV. Support from the Company
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The Company will reimburse the Employee for all reasonable travel and other
business expenses incurred in furthering the business of the Company.
Expenditures of an extraordinary nature shall require prior written approval of
the Company.
V. Prohibitions
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During the term of this Agreement, the Employee shall not:
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(a) be employed by or otherwise represent any other company, product,
service or enterprise, without the prior written approval of the
Company; or
(b) make any representation, guarantee, or statement, orally or in
writing, which would contravene any Company policy or compromise the
Company's interests.
VI. Compensation
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(a) The Employee shall be paid a base salary (the "Base Salary") and,
when appropriate, bonuses ("Bonus Compensation") as described in this
Section VI. The Employee's bi-weekly Base Salary shall be $7,692.31,
which is the equivalent of $200,000 per year. Provided neither party
has exercised the right to terminate this Agreement under Section VII,
performance and compensation reviews will be conducted annually
beginning January 27/th/, 1997.
(b) Bonus Compensation may be paid from time to time to the Employee
as approved by the Board of Directors of the Company, by a Committee
of the Board of Directors of the Company which has the authority to
determine the applicable bonus compensation or by a designee of the
Board of Directors who has been granted
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the authority to determine the applicable bonus compensation.
(c) Except as otherwise provided, the Employee shall be entitled to
participate in any and all benefit programs that the Company
establishes and makes generally available to its employees for which
he may be eligible under plan documents. In any case where
contributions or benefits related to participation in a plan vary on
the basis of compensation, "compensation" shall mean Employee's Base
Salary only and shall not include expense reimbursements, advances,
Bonus Compensation or any other compensation which may be paid by the
Company. The Employee shall be entitled to three weeks paid vacation
per year, to be taken at such times as may be approved by the
President.
(d) Any future revisions to Base Salary or Bonus Compensation may be
implemented by the Board of Directors of the Company, by a Committee
of the Board of Directors of the Company which has the authority to
determine the applicable bonus compensation or base salary or by a
designee of the Board of Directors who has been granted the authority
to determine the applicable bonus compensation or base salary.
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VII. Termination
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The employment of the Employee by the Company pursuant to this Agreement
shall terminate:
(a) By either party, without cause, by giving 45 days prior written
notice of termination to the other party, or within such shorter
period as is established by mutual agreement of the parties. The
Company reserves the right to provide Base Salary payments in lieu of
the 45 days notice.
(b) By either party, if the other party breaches any of its
obligations under this Agreement and fails to remedy such breach
within 30 days after written notice of such breach is provided to such
other party; failure of the Employee to adequately perform the
responsibilities specified in Section III hereof shall be considered a
breach of this Agreement.
(c) By the Company, effective immediately and without notice, for
cause. For purposes of this Section VII(c), "cause" for termination
shall be deemed to exist upon (a) a good faith finding by the Company
of the failure of the Employee to perform his assigned
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duties for the Company, dishonesty, gross negligence or misconduct, or
(b) the conviction of the Employee of, or the entry of a pleading of
guilty or nolo contendere by the Employee to, any crime involving
moral turpitude or any felony.
(d) Upon the death or disability of the Employee. As used in this
Agreement, the term "disability" shall mean the inability of the
Employee, due to a physical or mental disability, to perform the
essential functions of his/her job with or without a reasonable
accommodation.
VIII. Rights Following Termination
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(a) Following termination of this Agreement, pursuant to Section
VII(b), VII(c), VII(d), or at the option of the Employee pursuant to
Section VII(a), the Company shall have no further responsibility to
Employee except to pay Base Salary up to and including the last day of
employment.
(b) Following termination of this Agreement, at the option of the
Company pursuant to Section VII(a), the Company shall continue to pay
to the Employee the Base Salary which would otherwise be payable to
the Employee for a period of 52 weeks from the date of termination of
employment (the "Severance Period"), and further,
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any options for the purchase of shares of Class A Voting Common Stock
(the "Shares") of the Company granted to Employee within six months of
the Effective Date shall become exercisable as to that number of
Shares which would have become exercisable if the Employee's
employment had terminated one year after the actual date of
termination of employment (the "Acceleration of Options"). The
Employee shall be deemed to be an employee during the Severance Period
for eligibility for benefits to the extent allowable by law. The
Employee shall not be eligible to receive the payments, benefits or
the Acceleration of Options provided for under this Section VIII(b)
unless and until the Employee signs a release in the form attached
hereto as Exhibit A.
(c) In the event of termination or expiration of this Agreement,
Employee shall, at the instruction of the Company, promptly return to
the Company or its designee all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program
listings, or other written, photographic, or other tangible material
supplied by the Company to the Employee or created or maintained for
the Company by the Employee.
(d) Except as set forth above, neither party shall be entitled to any
compensation or claim for goodwill or other loss, suffered by reason
or termination of this
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Agreement.
(e) The rights and obligations of the parties to this Agreement set
forth in Section VIII and Section IX shall survive any termination of
this Agreement. The termination or expiration of this Agreement shall
in no case relieve either party from its obligations to pay to the
other any monies accrued hereunder prior to such termination or
expiration.
IX. Non-Compete.
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(a) During the Employment Period and for a period of one year after
the termination or expiration thereof, the Employee will not directly
or indirectly:
(i) as an individual, proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender, or in
any other capacity whatsoever (other than as the holder of not more
than one percent (1%) of the total outstanding stock of a publicly
held company), engage in the business of developing, producing,
marketing or selling products of the kind or type developed or being
developed, produced, marketed or sold by the Company or any subsidiary
of the Company while the Employee was employed by the Company,
provided that the foregoing
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restriction shall not apply after the end of the Employment Period to
activities that are not related to the Company's Year 2000 business
activities; or
(ii) recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company to terminate their employment
with, or otherwise cease their relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to
take away, the business or patronage of any of the clients, customers
or accounts, or prospective clients, customers or accounts, of the
Company which were contacted, solicited or served by the Employee
while employed by the Company.
(b) If any restriction set forth in this Section IX is found by any
court of competent jurisdiction to be unenforceable because it extends
for too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to extend
only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
(c) The restrictions contained in this Section IX are necessary for
the protection of the business and
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goodwill of the Company and are considered by the Employee to be
reasonable for such purpose. The Employee agrees that any breach of
this Section IX will cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, in addition to
such other remedies which may be available, the Company shall have the
right to seek specific performance and injunctive relief.
X. Other Agreements
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Employee represents that his performance of all the terms of this Agreement
and as an employee of the Company does not and will not breach any employment
agreement with any previous employer or any agreement with any previous employer
or other party to keep in confidence proprietary information, knowledge or data
acquired by him in accordance or in trust prior to his employment with the
Company or to refrain from competing, directly or indirectly, with the business
of such previous employer or any other party. Employee represents that he will
be able to complete Form I-9 upon commencement of employment.
XI. Notices
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All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or, if mailed, when
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mailed by certified or registered mail, postage prepaid, to the parties at the
addresses set forth below their signatures to this Agreement or at such other
address as may be given in writing by either party to the other party in
accordance with this Section XI.
XII. Assignability
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Employee acknowledges that the Company is entering into this Agreement in
reliance upon the personal reputation, qualifications and abilities of the
Employee and accordingly, the Employee may not assign his rights or obligations
under this Agreement, either voluntarily or by operation of law.
XII. Miscellaneous
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(a) This Agreement shall not be binding upon the Company until it has
been executed by a duly authorized officer of the Company.
(b) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Massachusetts.
(c) This Agreement constitutes the entire understanding between the
parties relating to the subject matter of this Agreement and
supersedes all
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prior writings, negotiations or understandings with respect thereto.
No modification or addition to this Agreement shall have any effect
unless it is set forth in writing and signed by both parties.
(d) The waiver by the Company of any breach of any provision of this
Agreement shall not be construed as a continuing waiver of such breach
or as a waiver of other breaches of the same or of other provisions of
this Agreement.
(e) Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal or
invalid, the validity of the remaining parts, terms, or provisions
shall not be affected thereby and said illegal and invalid part, term
or provision shall be deemed not to be a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxx X. Xxxxxx Xxxxxxx Xxxxxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx, XX 00000 Peritus Software Services, Inc
000 Xxxxxxx Xx.
Xxxxxxxxx, XX 00000
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Date: January 27/th/, 1997 Date: January 27/th/, 1997
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EXHIBIT A
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RELEASE
1. Release. In consideration of the payment to me of the severance benefit
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provided to me under a certain employment contract between Peritus Software
Services, Inc., a Massachusetts Corporation (the "Company"), I hereby fully,
forever, irrevocably and unconditionally release, remise and discharge the
Company, and any subsidiary or affiliated organization of the Company or their
current or former officers, directors, stockholders, corporate affiliates,
attorneys, agents and employees (the "Released Parties") from any and all
claims, charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys' fees and costs), of every kind
and nature, known or unknown, which I ever had or now have against the Released
Parties, including, but not limited to, all claims arising out of my employment,
all claims arising out of your separation from employment, all claims arising
from any failure to reemploy you, all claims of race, sex, national origin,
handicap, religious, sexual preference, benefit and age discrimination, all
employment discrimination claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. (S)2000 et seq., the Age Discrimination in Employment Act, 29
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U.S.C. (S)621 et seq., the Americans with Disabilities Act of 1990, 29 U.S.C.
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(S)12101 et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C.
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(S)1001 et seq., and similar state or local statutes, wrongful discharge claims,
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common law tort, defamation, breach of contract and other common law claims, and
any claims under any other federal, state or local statutes or ordinances not
expressly referenced above.
2. Entire Agreement and Applicable Law. This Agreement contains and
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constitutes the entire understanding and agreement between the parties hereto
with respect to the purchase price for your Company Stock and settlement of
claims against the Company and cancels all previous oral and written
negotiations, agreements, commitments, and writings in connection therewith.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts to the extent not preempted by federal law.
3. Acknowledgments. I acknowledge that I have been given at least twenty-one
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(21) days to consider this Agreement and that the Company advised me to consult
with any attorney of my own choosing prior to signing this Agreement. I
acknowledge that I may revoke this Agreement for a period of seven (7) days
after signing it, and the Agreement shall not be effective or enforceable until
the expiration of this seven (7) day revocation period.
Date:_____________________ Employee's Signature:___________________
Employee's Name:________________________
(type or print)
