EXHIBIT 10.31
EXECUTIVE EMPLOYMENT
AGREEMENT
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ADAYTUM SOFTWARE, INC.
BUSINESS BUDGET MANAGEMENT SOLUTIONS PTY
LIMITED
XXXXXXX XXXXXXX XXXXX XXXXXXXXX
XXXXX XXXXX & XXXXXXX
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
-C- Copyright Xxxxx Xxxxx & Xxxxxxx 2000
EXECUTIVE EMPLOYMENT AGREEMENT XXXXX XXXXX & XXXXXXX
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DATE 2000
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PARTIES
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1. ADAYTUM SOFTWARE, INC. of 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, XXX (ADAYTUM);
2. BUSINESS BUDGET MANAGEMENT SOLUTIONS PTY LIMITED
(ACN 082 177 400) of Xxxxxxxxx Xxxxx, Xxxxx 0,
0 Xxxxxxx Xxxxxx, Xx Xxxxxxxx, XXX 0000, Xxxxxxxxx
(the COMPANY); and
3. XXXXXXX XXXXXXX XXXXX XXXXXXXXX of 00 Xxxxx Xxxxxx, Xxxxxxxxx,
XXX 0000, Xxxxxxxxx (the EMPLOYEE).
RECITALS
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A The Company has agreed to employ the Employee and the Employee
has agreed to serve the Company on the terms of this Agreement
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ADAYTUM STOCK OPTION PLAN means The Adaytum Software Inc 1999 Stock
Option Plan.
BASE SALARY means the amount of remuneration received by the Employee,
being the amount set out in clause 5.1, as amended by review from time
to time under clause 4.2.
CONFIDENTIAL INFORMATION:
(a) means information (whether or not in material form) given to
or gained by the Employee before, during or after the Term,
that relates to:
(i) the Company or any Group Member; or
(ii) customers or suppliers of the Company or any Group
Member in that capacity; and
(b) includes, but is not limited to:
(i) trade secrets;
(ii) information relating to the business affairs, accounts
work, marketing plans, sales plans, prospects, price
information,
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supplier lists, research, management, financing,
products, inventions, designs or processes;
(iii) computer data bases and computer software; and
(iv) data surveys, customer lists, specifications,
drawings, records, reports and statements.
GROUP means the Company and any Related Body Corporate from time to
time and includes Adaytum Software, Inc. and its subsidiaries.
GROUP MEMBER means any member of the Group.
IMPROVEMENTS means all inventions, improvements or discoveries
conceived by the Employee during the Term and which are related or are
in any way connected with the Company's business or that of a Group
Member.
OPERATIVE DATE means 1 March 2000.
RELATED BODY CORPORATE means, in relation to a body corporate, a body
corporate which is related to it within the meaning of Section 50 of
the Corporations Law.
RELEVANT GROUP MEMBER means each Group Member for whom the Employee may
work or perform services from time to time.
SHARE ACQUISITION AGREEMENT means the agreement between Adaytum and the
Employee under which the Employee sells to Adaytum all of the shares in
the Company.
SUPERANNUATION FUND means the Mercantile Mutual "Integra Retirement
Plan" SFN 148 113 944.
TERM means the period during which this Service Agreement and the
Employee's employment by the Company continues, as provided in
clause 1.2.
TERMINATION DATE means the date of termination of the Employee's
employment with the Company whether under clause 5 or otherwise.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) The SINGULAR includes the plural and conversely.
(b) A GENDER includes all genders.
(c) Where a WORD or PHRASE is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a CLAUSE or SCHEDULE is to a clause of or
schedule to this Service Agreement.
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(e) A reference to any PARTY to this Service Agreement or any
other agreement or document includes the party's successors
and permitted assigns.
(f) A reference to CONDUCT includes, without limitation, any
omission, statement or undertaking, whether or not in writing.
2. TERM OF EMPLOYMENT
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2.1 ENGAGEMENT
The Company shall employ the Employee as Managing Director - Asia
Pacific of the Company and the Employee shall serve the Company in
accordance with this Agreement during the Term.
2.2 TERM
The term of this Agreement will be two years commencing on the
Operative Date, after which period it will continue unless it is
terminated by either party under clause 5.
3. EMPLOYEE'S OBLIGATIONS
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3.1 POSITION
The Employee shall perform the duties of managing director or any other
position that may be agreed in writing between the Company and the
Employee from time to time.
3.2 DUTIES OF EMPLOYEE
During the Term the Employee shall do the following:
(a) give the whole of his time, ability and attention in normal
working hours, or when reasonably required outside those
hours, to the business and affairs of the Company and the
Group;
(b) faithfully and diligently perform the duties and exercise the
powers consistent with his office that may be assigned to him
by the Company or any Group Member from time to time;
(c) comply with all reasonable directions given to him by the
Company or any Group Member;
(d) observe and comply with the provisions set out in any written
policy, practice or procedure circulated by the Company or any
Group Member from time to time;
(e) use his best endeavours to promote the interests of the Group;
and
(f) protect the property of the Group from theft, loss, damage or
neglect and without delay give notice immediately to the
Company or any Relevant Group Member or its responsible
representatives of any
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theft, loss, damage or neglect of such property which may come
to his knowledge.
4. NO COMPETITION AND CONFIDENTIALITY
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4.1 COVENANTS
Without limiting the generality of clause 2, the Employee shall not
without the prior written consent of the Company or any Relevant Group
Member do any of the following during the Term:
(a) directly or indirectly be concerned or interested whether as
principal, agent, partner, shareholder, director, employee or
otherwise in any firm, corporation or entity involving the
conduct of, or preparation for, any business in competition
with, or of a similar nature to, any business for the time
being carried on by the Company or any Group Member;
(b) disclose or use any confidential information of any kind
including, without limitation, any formula, process, method of
manufacture, trade secret, record, data or any information
concerning the business, affairs or customers of the Group
which may come to his knowledge, except:
(i) disclosure or use in the proper course of the
Employee's duties;
(ii) for information which is freely available to the
public; or
(iii) to the extent the Employee is required to disclose
information by law or requirement of any regulatory
body;
(c) undertake any other business or profession.
4.2 CONFIDENTIAL INFORMATION
(a) The Employee shall not use any Confidential Information for
the benefit of any person except the Group.
(b) If there is uncertainty as to whether:
(i) any information is Confidential Information; or
(ii) any Confidential Information is lawfully able to be
disclosed under clause 4.1,
that information shall be taken to be Confidential Information
which is not able to be disclosed, unless the Employee is
advised by the Company in writing to the contrary.
(c) The Employee shall:
(i) maintain proper and secure custody of all
Confidential Information; and
(ii) use his best endeavours to prevent the use or
disclosure of the Confidential Information by third
parties.
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(d) The Employee shall immediately deliver to the Company all
Confidential Information that is physically capable of
delivery:
(i) at the end of the Term; and
(ii) at any time at the request of a person authorised by
the Company.
(e) Instead of delivering Confidential Information, the Company
may request the Employee to destroy Confidential Information
and certify in writing to the Company that the Confidential
Information has been destroyed.
(f) The Company may direct that Confidential Information contained
in computer software or data be destroyed by erasing it from
the magnetic media on which it is stored so that the
information cannot be recovered or reconstructed.
(g) The Employee must not make any copy or summary of any
Confidential Information, except if required to do so in the
course of his employment. If the Executive is required to make
a copy or summary of Confidential Information in the course of
his Employment, the copy or summary belongs to the Company.
(h) The Employee shall comply with the obligations under this
clause 4.2 at all times during and after the Term. Any Group
Member may enforce these obligations at any time.
(i) Nothing in this clause 4 shall limit any other duty of
confidentiality of the Employee at law or in equity.
4.3 IMPROVEMENTS
The Employee acknowledges that all Improvements shall be the exclusive
property of the Company or the Group and the Employee shall:
(a) promptly disclose to the Company any Improvements developed by
the Employee or known by the Employee to have been developed
by any other employee of the Group in the course of their
employment; and
(b) immediately take any reasonable action necessary to transfer
to the Company the Employee's and such other employee's
interest in any Improvements.
(c) The Executive shall not prior to the transfer of any rights to
any Improvements pursuant to this clause 4.3 take any action
which would in any way abrogate, Encumber, restrict or
transfer the interest in the Improvements.
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5. CONDITIONS OF EMPLOYMENT
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5.1 SALARY
Until this Agreement is terminated, the Company shall pay the Employee
a Base Salary of US$150,000 per annum payable, exclusive of
superannuation, by equal monthly instalments.
5.2 REVIEW
(a) The Company shall undertake an annual review of the Base
Salary payable to the Employee.
(b) The first review shall occur one year from the Operative Date.
The adjustment to the Base Salary, if any, shall take effect
on the first day of the calendar month immediately following
the anniversary of the Operative Date.
5.3 SICK LEAVE
The Employee shall be entitled to 5 days sick leave in any full year
during his employment on full salary. Sick leave not taken during the
year is automatically forfeited at the expiration of the year.
5.4 ANNUAL LEAVE
The Employee shall be entitled to 20 days annual leave in any full year
during his employment on full salary.
5.5 SUPERANNUATION
The Company shall pay any superannuation contribution required to be
paid to comply with its obligations under the Superannuation
Administration Xxx 0000.
5.6 TRAVEL AND EXPENSES
The Company or any Relevant Group Member shall reimburse the Employee
for all travelling and other out of pocket expenses properly incurred
by the Employee in or about its business. Those expenses must be
evidenced in the manner that the Company or any Relevant Group Member
reasonably requires.
5.7 BENEFIT PLANS
The Employee shall be entitled to participate in such plans as the
Company shall, in its sole discretion, from time to time establish for
the benefit of its employees.
The plan which is currently in operation is set out in Schedule 1.
5.8 STOCK OPTIONS
(a) From the date of this Agreement, the Employee shall be
entitled to receive 40,000 Adaytum stock options which shall:
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(i) vest over a 4 year period;
(ii) have a 10 year term;
(iii) have an exercise price equal to market value as
determined by Adaytum Board on the date of the grant
of the options; and
(iv) be subject to the terms and conditions of the Adaytum
Stock Option Plan.
(b) Except for termination under clause 6.11, if this Agreement is
terminated for any reason, the Employee shall forfeit his
entitlement to any Adaytum stock options which have not been
vested at the time of the termination, or if this Agreement is
terminated by the giving of notice, on the date that the
notice is given.
5.9 MAINTAIN INSURANCE
(a) The Company agrees to maintain a contract of insurance from an
established and reputable insurer, which insures the Company
against all liabilities incurred by the Employee as a
director, provided that the liability does not arise out of
conduct involving a wilful breach of duty to the Company or a
contravention of the Corporations Law.
(b) Unless the Company agrees otherwise, the insurance contract
referred to in paragraph 5.9(a) will contain a provision
waiving all rights of subrogation or action against the
Company.
(c) The Company will use its best endeavours to ensure that it
does not do anything which will render void any insurance
policy maintained under clause 5.9(a).
6. TERMINATION
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6.1 TERMINATION BY THE COMPANY WHERE BREACH BY THE EMPLOYEE
The Company may immediately terminate this Agreement and the Employee's
employment by notice to the Employee in writing if the Employee at any
time:
(a) commits any serious or persistent breach of this Agreement
which is not capable of remedy including, without limitation,
intentional disobedience, dishonesty, serious or persistent
breach of duty or serious or persistent neglect;
(b) materially breaches this Agreement and does not remedy that
breach within two days after receiving notice from the Company
specifying the breach;
(c) is declared bankrupt or enters into any composition or
arrangement with or makes any assignment of his property in
favour of his creditors generally;
(d) becomes of unsound mind or a person whose person or estate is
liable to be dealt with in any way under laws relating to
mental health;
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(e) is convicted of a criminal offence which, in the reasonable
opinion of the Company, will detrimentally affect any Group
Member; or
(f) has conducted himself in a manner which, in the reasonable
opinion of the Company, will detrimentally affect any Group
Member.
6.2 PAYMENT ON TERMINATION
If the Employee's employment is terminated under clause 5.1, the
Company shall not be obliged to pay the Employee any moneys other than
the following:
(a) any accrued Base Salary to which the Employee is entitled to
on the Termination Date;
(b) a pro rata amount of any bonus payment to which the Employee
is entitled to under the bonus component of any applicable
benefit plan;
(c) any contributions to the Superannuation Fund due as at the
Termination Date;
(d) any amount to which the Employee is entitled in lieu of unused
annual leave; and
(e) any amount to which the Employee is entitled under the Long
Service Leave Xxx 0000 (NSW).
6.3 GENERAL TERMINATION
(a) The Company may at any time and for any reason terminate the
Employee's employment by giving 6 months' notice to the
Employee and by paying to the Employee on the date on which
that notice period expires the payments specified in clause
5.2.
(b) The Employee may at any time and for any reason terminate this
Agreement by giving one month's notice to the Company. On the
date that the notice expires the Company must pay to the
Employee the payments specified in clauses 6.2(a),(c),(d) and
(e) only.
6.4 PAYMENT IN LIEU OF NOTICE
The Company may at its discretion pay the Employee the payment
specified in clause 6.2 in lieu of any notice period relating to the
termination of the Employee's employment under this Agreement.
6.5 NO CLAIM FOR COMPENSATION
(a) If this Agreement is terminated by the Company under clause
5.3, the Employee will not be entitled to claim any amounts by
way of retirement allowance or liquidated damages or any other
payments as a consequence of termination except for the
payments set out in clause 5.2.
(b) Any payment by the Company under this clause 5 shall be
without prejudice to any rights or remedies the Company may
have against the Employee and shall not constitute any
admission of fact or liability.
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6.6 TRANSFER OF SUPERANNUATION
After termination of this Agreement, subject to the terms of the trust
deed and rules of the Superannuation Fund, the Company shall ensure
that the trustee of the Superannuation Fund transfers the Employee's
entitlements under the Superannuation Fund to another superannuation
fund nominated by the Employee or deals with them otherwise in
accordance with relevant legislation.
6.7 SURVIVAL OF EMPLOYEE'S OBLIGATIONS ON TERMINATION
Clauses 5.8, 5.9 and 6 survive the termination of this Agreement.
6.8 RETURN OF COMPANY PROPERTY
On termination of this Agreement, the Employee shall immediately
deliver to the Company all books, documents, papers, materials, credit
cards, motor vehicles and other property of the Group which may then be
in the Employee's possession or under his power or control.
6.9 RESIGNATION AS DIRECTOR
(a) If the Employee is a director or secretary of any Group
Member, he shall resign from that position, on the termination
of his employment if required to do so by the Company.
(b) If the Employee fails to resign from any office in accordance
with clause 6.9(a), the Company is irrevocably authorised by
him to appoint a person in his place and on his behalf to sign
any documents and do anything required to give effect to that
resignation. The Employee must on the request of the Company
ratify and confirm anything done by the Company pursuant to
the power conferred by this clause 6.9.
6.10 SUSPENSION OF EMPLOYEE
The Company may suspend the Employee on full pay for any period if the
Company considers it in the best interests of the Company to do so.
6.11 TERMINATION IN THE EVENT OF DISABILITY
(a) If the Employee has a mental or physical condition that
renders him unable to perform the essential functions of his
job for 90 or more days within any 180 day period this
Agreement shall terminate.
(b) In the event or termination under clause 6.11(a) the Adaytum
Stock Option Plan and any applicable benefit plan shall
continue to operate after the disability.
6.12 TERMINATION IN THE EVENT OF CHANGE IN CONTROL OF THE COMPANY
In the event of change in control of the Company, being a sale of more
than 50% of the shares in the Company, the Employee may elect to
terminate this Agreement, within three months of the date of the change
in control, and on
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termination for a change in control the Employee shall be entitled to
receive 12 months base salary and any benefits under the applicable
benefit plan in force at that time.
7. OBLIGATIONS OF EMPLOYEE AFTER EMPLOYMENT CEASES
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7.1 CONFIDENTIALITY
The provisions of clause 4 will continue to apply after the Term with
respect to Confidential Information.
7.2 NON SOLICITATION
For 12 months after the Term, the Employee shall not either on his own
account or for any person, solicit or entice or endeavour to solicit or
entice from any Group Member:
(a) any director, manager, officer, employee, servant or
contractor of or to any Group Member (whether or not such
person would commit a breach of any contract by reason of
ceasing to serve or act for the any Group Member); or
(b) the custom of any person who has during the Term been a
customer, supplier, distributor or licensee of the Company or
a Group Member.
7.3 REMEDIES
The Employee acknowledges that the remedy at law for breach of clauses
4.1, 6.1 and 7.2 would be inadequate and that temporary and permanent
relief by way of injunction against him may be granted in any
proceedings which the Company or any Relevant Group Member or any
persons on its behalf may bring to enforce any of the provisions of
those clauses without the necessity of proof of actual damage suffered
by the Company or any Relevant Group Member as the case may be.
7.4 PROTECTION OF GOODWILL
The Employee acknowledges that having regard to his duties with the
Group, his undertakings in clauses 4.1, 6.1, 6.3 and 7.3 are reasonable
and necessary for the protection of the goodwill of the Group.
8. MISCELLANEOUS
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8.1 SET-OFF
On termination of his employment, the Employee authorises each Relevant
Group Member to set-off against and deduct from all or any amounts
payable to the Employee, any amount owing by the Employee to the
Company on any account.
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8.2 GOVERNING LAW
This Agreement is governed by the laws of New South Wales. The parties
submit to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
8.3 NO WAIVER
No failure to exercise and no delay in exercising any right, power or
remedy under this Agreement will operate as a waiver. Nor will any
single or partial exercise of any right, power or remedy preclude any
other or further exercise of that or any other right, power or remedy.
8.4 NOTICES
Any notice required to be given under this Agreement by any party to
another shall be in writing addressed to the intended recipient at the
address last notified by the intended recipient to the party giving the
notice.
8.5 SEVERANCE
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction will be ineffective in that jurisdiction to the extent
of the prohibition or unenforceability. That will not invalidate the
remaining provisions of this Agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
8.6 ASSIGNMENT
The rights and obligations of each party under this Agreement are
personal. They cannot be assigned, charged or otherwise dealt with and
no party shall attempt or purport to do so, without the prior written
consent of the parties.
8.7 AMENDMENT
This Agreement may be amended only by a further Agreement executed by
both parties.
8.8 ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties with
respect to its subject matter. It sets out the only conduct relied on
by the parties and supersedes all earlier conduct by the parties with
respect to its subject matter.
8.9 COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts taken together will be taken to constitute one agreement.
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EXECUTED in Sydney as an agreement.
EXECUTED by BUSINESS )
BUDGET MANAGEMENT )
SOLUTIONS )
PTY LIMITED
in the presence of: )
/S/ X.X. Xxxxx Haddleton /S/ X.X. Xxxxx Haddleton
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Signature Signature
X.X. Xxxxx Haddleton X.X. Xxxxx Haddleton
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Print name Print name
Director and Secretary
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Office held
EXECUTED by ADAYTUM )
SOFTWARE, INC. )
in the presence of: )
/S/ Xxxxxxxxx X. Xxxxxxx /S/ Xxxxxxx X. Xxxx
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Signature Signature
Xxxxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxx
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Print name Print name
VP - Finance and Administration
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Office held
SIGNED by XXXXXXX XXXXXXX )
XXXXX XXXXXXXXX )
in the presence of: ) /S/ X. X. Xxxxx Haddleton
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Signature
/S/ Ashley Cahif
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Witness
Ashley Cahif
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Print Name
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SCHEDULE 1
BENEFIT PLAN
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The Company offers the following benefit plan as at February 2000:
(a) Car
The Company shall provide the Employee with a BMW 5 series or
equivalent car;
(b) Medical insurance
The Company shall provide the Employee with family medical
insurance; and
(c) Bonus scheme
The target earnings for the Company are US$190,000.
A bonus of US$10,000 per quarter will be paid, quarterly in
arrears, which will be varied in accordance with the
realisation of the target earnings for the following areas in
the proportions set out below:
Asia-Pacific revenue vs target 40% of bonus
Australian revenue vs target 40% of bonus
Recruitment vs target 20% of bonus,
For the avoidance of doubt, the Company may at any time vary, in its
absolute discretion, any of the benefits under the benefit plan.
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