EXHIBIT 2.2
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EXECUTION COPY
BRIDGELINE SOFTWARE
EMPLOYMENT AGREEMENT
Bridgeline Software, Inc., a Delaware corporation (the "EMPLOYER" or the
"COMPANY"), and Xxxxxxx Xxxxxxxxx (the "EMPLOYEE"), in consideration of the
mutual promises made herein, agree as follows:
ARTICLE 1
TERM OF EMPLOYMENT
SECTION 1.1 SPECIFIED PERIOD. Employer hereby employs Employee, and
Employee hereby accepts employment with Employer for the period beginning on
August 31, 2007 (the "COMMENCEMENT DATE"), and terminating on August 31, 2009
("INITIAL TERM").
SECTION 1.2 SUCCEEDING TERM. At the end of the Initial Term, or any
succeeding one year term, this Employment Agreement shall automatically renew
for successive periods of one (1) year each (a "SUCCEEDING TERM") unless the
Employer gives written notice of nonrenewal not less than sixty (60) days prior
to the end of the Initial Term or Succeeding Term, as applicable. If such notice
of non-renewal is provided to the Employee by the Employer, the Employment
Agreement will terminate, except the provisions of Sections 2.3, 2.4, 2.5 and
2.6 shall continue in force so long as the Employee remains employed by the
Employer or any Affiliate of the Employer, whether under this Agreement or not,
and whether as a consultant or not, and shall survive any termination of
employment under this Agreement for the periods specified therein, all as more
specifically provided in Section 7.10. Once this Employment Agreement terminates
then the Employee shall become an employee at will at the end of the Initial
Term or Succeeding Term, as applicable.
SECTION 1.3 EMPLOYMENT TERM DEFINED. As used herein, the phrase "employment
term" refers to the entire period of employment of Employee by Employer
hereunder, whether such employment is during the Initial Term and any Succeeding
Terms or following the end of the Succeeding Term, as an employee at will.
ARTICLE 2
DUTIES AND OBLIGATIONS OF EMPLOYEE
SECTION 2.1 GENERAL DUTIES. Employee shall serve as Executive Vice
President and General Manager for the Chicago region of the Employer. In such
capacity, Employee shall do and perform all services, acts or things consistent
within the scope of his employment and with the Employee's skill and expertise
in accordance with the instructions of and policies set by Employer's Chief
Executive Officer, or his designee. Employee shall perform such services at 000
Xxxxx Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 or at such other location in the Chicago
metropolitan area as may be designated by Employer. The Employee shall be
available to make business trips both within and outside the United States for
the purpose of meeting with and consulting with other members of the Employer's
management, as well as with present and proposed customers and parties with whom
the Employer does business, all on such reasonable terms, bearing in mind the
position of the Employee.
SECTION 2.2 DEVOTION TO EMPLOYER'S BUSINESS.
(a) Employee shall devote his best efforts and entire productive time,
ability and attention to diligently promote and improve the business of Employer
during the Term.
(b) Employee shall not engage in any other business duties or pursuits
whatsoever, or directly or indirectly render any services of a business,
commercial or professional nature to any other person or organization, whether
for compensation or otherwise, without the prior written consent of the
Employer's President & CEO. This Agreement shall not be interpreted to prohibit
Employee from making passive personal investments or conducting private business
affairs if those private business affairs do not materially interfere with the
services required under this Agreement.
SECTION 2.3 CONFIDENTIAL INFORMATION; TANGIBLE PROPERTY; COMPETITIVE
ACTIVITIES.
(a) Employee shall hold in confidence and not use or disclose to any person
or entity without the express written authorization of Employer, either during
the term of employment or any time thereafter, secret or confidential
information of Employer, as well as secret or confidential information and
materials received in confidence from third parties by Employee or Employer. If
any confidential information described below is sought by legal process,
Employee will promptly notify Employer and will cooperate with Employer in
preserving its confidentiality in connection with any legal proceeding.
The parties hereto hereby stipulate that, to the extent it is not known
publicly, the information described in this Section (herein referred to as
"Confidential Information") is important, material and has independent economic
value (actual or potential) from not being generally known to others who could
obtain economic value from its disclosure or use and that any breach of any
terms of this Section 2.3 is a material breach of this Agreement: (i) the names,
buying habits and practices of Employer's customers or prospective customers;
(ii) Employer's sales and marketing strategy and methods and related data; (iii)
the names of Employer's vendors and suppliers; (iv) cost of materials/services;
(v) the prices Employer obtains or has obtained or for which it sells or has
sold its products or services; (vi) development costs; (vii) compensation paid
to employees or other terms of employment; (viii) Employer's past and projected
sales volumes; (ix) confidential information relating to actual products,
proposed products or enhancements of existing products, including, but not
limited to, source code, programming instructions, engineering methods and
techniques, logic diagrams, algorithms, development environment, software
methodologies, and technical specifications for the Employer's web design and
content management software. Confidential Information shall also include all
information which the Employee should reasonably understand is secret or
confidential information, provided the same is clearly designated as
confidential by marking or stamping "Confidential" or similar words on the cover
of such information, or by orally communicating such confidentiality and
confirming such confidentiality in a later written communication. Confidential
Information shall also include all information which the Employee should
reasonably understand is secret or confidential information, if the Employee has
participated in or otherwise been involved with the development, analysis,
invention or origination of such Confidential Information belonging to the
Employer, including, without limitation, methods, know-how, formula, customer
and supplier lists, personnel and financial data, business plans, as well as
product information, product plans and product strategies. Notwithstanding the
foregoing, "Confidential Information" does not include any information which (A)
is now available to the public or which becomes available to the public, (B) is
or becomes available to the Employee from a source other than the Employer and
such disclosure is not a breach of a confidentiality agreement with the
Employer, or (C) is required to be disclosed by any government agency or in
connection with a court proceeding.
All Confidential Information, as well as all software code, methodologies,
models, samples, tools, machinery, equipment, notes, books, correspondence,
drawings and other written, graphical or electromagnetic records relating to any
of the products of Employer or relating to any of the Confidential Information
of Employer which Employee shall prepare, use, construct, observe, possess, or
control shall be and shall remain the sole property of Employer and shall be
returned by Employee upon termination of employment.
(b) During his employment and for twelve (12) months after the termination
of his employment for any reason whatsoever, Employee shall not, directly or
indirectly, without the written consent of the Employer: (i) invest (except for
the ownership of less than 3% of the capital stock of a publicly held company),
or hold a directorship or other position of authority in any of the Employer's
Direct
Competitors ("DIRECT COMPETITORS" defined as: any person or entity, or a
department or division of an entity, whereby more than 25% of the person's or
entity's total revenues are derived from the Competitive Services ("COMPETITIVE
SERVICES" defined as design and development for third parties of: on-demand web
property management tools and custom web applications (including but not limited
to content management, analytics, eCommerce, digital asset management,
relationship management, eNewsletters, eSurveys, event registration, and grants
management), custom application development, usability engineering, eCommerce
development, rich media development, eTraining development, and search engine
optimization), (ii) undertake preparation of or planning for an organization or
offering of Competitive Services, (iii) combine or collaborate with other
employees or representatives of the Employer or any third party for the purpose
of organizing, engaging in, or offering Competitive Services, or (iv) be
employed by, serve as a consultant to or otherwise provide services to (whether
as principal, partner, shareholder, member, officer, director, stockholder,
agent, joint venturer, creditor, investor or in any other capacity), or
participate in the management of a Direct Competitor or participate in any other
business that the Employer may be engaged or is planning to undertake in at the
date of the termination of this Agreement.
(c) During his employment and for twelve (12) months after the termination
of such employment for any reason whatsoever, Employee shall not become employed
by, associated with, or engaged by, in any capacity whatsoever, any customer,
client or account (as defined below) of the Employer whereby Employee provides
services to such customer, client or account similar to those provided by the
Employer to the customer, client or account during Employee's employment.
Employee acknowledges and understands that Employer's customers, clients and
accounts have executed or will execute agreements pursuant to which the
customer, client or account agrees not to hire Employer's employees.
(d) During his employment and for twelve (12) months after the termination
of such employment for any reason whatsoever, Employee shall not, directly or
indirectly, without the consent of the Employer: contact, recruit, solicit,
induce or employ, or attempt to contact, recruit, solicit, induce or employ, any
employee, consultant, agent, director or officer of the Employer to terminate
his/her employment with, or otherwise cease any relationship with, the Employer;
or contact, solicit, divert, take away or accept business from, or attempt to
contact, solicit, divert or take away, any clients, customers or accounts, or
prospective clients, customers or accounts, of the Employer, or any of the
Employer's business with such clients, customers or accounts which were,
directly or indirectly, contacted, solicited or served by Employee, or were
directly or indirectly under his responsibility, while Employee was employed by
the Company, or the identity of which Employee became aware during the term of
his employment.
As used in this agreement the term "client," "customer," or "accounts"
shall include: (i) any person or entity that is a client, customer or account of
the Employer on the date hereof or becomes a client, customer or account of the
Employer during the Employee's employment; (ii) any person or entity that was a
client, customer or account of the Employer at anytime during the one-year
period preceding the date of Employee's termination; and (iii) any prospective
client, customer or account to whom the Employer has made a presentation (or
similar offering of services) within a period of 180 days preceding the date of
the termination of Employee's employment.
(e) The covenants of this Section 2.3 shall be construed as separate
covenants covering their subject matter in each of the separate counties and
states in the United States in which Employer (or its Affiliates) transacts its
business. If at any time the foregoing provisions shall be deemed to be invalid
or unenforceable or are prohibited by the laws of the state or place where they
are to be enforced, by reason of being vague or unreasonable as to duration or
place of performance, this Section shall be considered divisible and shall
become and be immediately amended to include only such time and such area as
shall be determined to be reasonable and enforceable by the court or other body
having jurisdiction over this Agreement; and the Employer and the Employee
expressly agree that this Section, as so amended, shall be valid and binding as
though any invalid or unenforceable provision had not been included herein.
(f) The Employee represents and warrants that Employee is free to enter
into this Agreement and to perform each of the terms and covenants contained
herein, and that doing so will not violate the terms or conditions of any
agreement between Employee and any third party.
SECTION 2.4 INVENTIONS AND ORIGINAL WORKS.
(a) Subject to Section 2.4(b) below, the Employee agrees that he will
promptly make full written disclosure to Employer, will hold in trust for the
sole right and benefit of Employer, and hereby irrevocably assigns to Employer
without any additional compensation all of his right, title and interest in and
to any and all inventions (and patent rights with respect thereto), original
works of authorship (including all copyrights with respect thereto),
developments, improvements or trade secrets which Employee may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, relating to or concerning the business of the Employer,
whether or not conceived, developed or reduced to practice: (i) during working
hours, (ii) while on Employer premises, (iii) with use of Company equipment,
materials or facilities, or (iv) while performing his duties under this
Agreement ("Employer Intellectual Property").
Employee acknowledges that all original works of authorship relating to the
business of Employer which are made by him (solely or jointly with others)
within the scope of his duties under this Agreement and which are protectable by
copyrights are "works made for hire" as that term is defined in the United
States Copyright Act (17 U.S.C.A., Section 101), and that Employee is an
employee as defined under that Act. Employee further agrees from time to time to
execute written transfers to Employer of ownership or specific original works or
authorship (and all copyrights therein) made by Employee (solely or jointly with
others) which may, despite the preceding sentence, be deemed by a court of law
not to be "works made for hire" in such form as is acceptable to Employer in its
reasonable discretion. Employee hereby waives in favor of Employer and its
assigns and licensees any and all artist's or moral rights Employee may have in
respect of any Invention pursuant to any local, state or federal laws or
statutes of the United States and all similar rights under the laws of all
jurisdictions.
(b) The parties agree that the "business of the Employer" for the purposes
of this Section 2.4 is acting as a designer and developer for third parties of
"ON-DEMAND WEB PROPERTY MANAGEMENT TOOLS AND CUSTOM WEB APPLICATIONS (INCLUDING
BUT NOT LIMITED TO CONTENT MANAGEMENT, ANALYTICS, ECOMMERCE, DIGITAL ASSET
MANAGEMENT, RELATIONSHIP MANAGEMENT, ENEWSLETTERS, ESURVEYS, EVENT REGISTRATION,
AND GRANTS MANAGEMENT), CUSTOM APPLICATION DEVELOPMENT, USABILITY ENGINEERING,
ECOMMERCE DEVELOPMENT, RICH MEDIA DEVELOPMENT, ETRAINING DEVELOPMENT, AND SEARCH
ENGINE OPTIMIZATION." Employee shall provide to Employer, and attach hereto as
Exhibit 2.4(b), a list identifying and describing in reasonable detail all
inventions (and patent rights with respect thereto), original works of
authorship (including all copyrights with respect thereto), developments,
improvements, concepts or trade secrets which Employee has solely or jointly
conceived or developed or reduced to practice, or caused to be conceived or
developed or reduced to practice to date, and other intellectual property of the
Employee. For the avoidance of doubt, Employee will identify on Exhibit 2.4(b)
with sufficient detail any intellectual property belonging to the Employee prior
to the date hereof, including that related to the business of the Employer
(collectively the "Employee's Personal Intellectual Property"). Employer
acknowledges and agrees that the provisions of Section 2.4(a) shall not apply to
Employee's Personal Intellectual Property or to any inventions (and patent
rights with respect thereto), original works of authorship (including all
copyrights with respect thereto), developments, improvements, concepts or trade
secrets conceived of or developed by Employee during the term of this Agreement
that is not Employer Intellectual Property.
SECTION 2.5 MAINTENANCE OF RECORDS. Except with respect to the Intellectual
Property for which the Employer has no rights, Employee agrees to keep and
maintain reasonable written records of all inventions, original works of
authorship, trade secrets developed or made by him (solely or jointly with
others) during the employment term. The Employee also agrees to make and
maintain adequate and reasonable written records customarily maintained by
corporate managers, including, without limitation,
lists and telephone numbers of persons and companies he has contacted during his
engagement by the Employer. Immediately upon the Employer's request and promptly
upon termination of the Employee's engagement with the Employer, the Employee
shall deliver to the Employer all written records as described in this Section,
together with all memoranda, notes, records, reports, photographs, drawings,
plans, papers, computer storage media, Confidential Information or other
documents made or compiled by the Employee or made available to the Employee
during the course of his engagement by the Employer, and any copies or abstracts
thereof, whether or not of a secret or confidential nature, and all of such
records, memoranda or other documents shall, during and after the engagement of
the Employee by the Employer, be and shall be deemed to be the property of the
Employer.
SECTION 2.6 OBTAINING LETTERS PATENT AND COPYRIGHT REGISTRATION. During the
employment term hereunder, Employee agrees to assist Employer, at Employer's
expense, to obtain United States or foreign letters patent, and copyright
registrations (as well as any transfers of ownership thereof) covering
inventions and original works of authorship assigned hereunder to Employer. Such
obligation shall continue beyond the termination of this Agreement for a
reasonable period of time not to exceed one (1) year subject to Employer's
obligation to compensate Employee at such rates as may be mutually agreed upon
by the Employer and Employee at the time, but not exceeding the annualized rate
provided for in Section 4.1 of this Agreement, and reimbursement to Employee of
all expenses incurred.
If Employer is unable for any reason whatsoever, including Employee's
mental or physical incapacity to secure Employee's signature to apply for or to
pursue any application for any United States of foreign letters, patent or
copyright registrations (or any document transferring ownership thereof)
covering inventions or original works or authorship assigned to Employer under
this Agreement, Employee hereby irrevocably designates and appoints Employer and
its duly authorized officers and agents as Employee's agent and attorney-in-fact
to act for and in his behalf and stead to execute and file any such applications
and documents and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations or
transfers thereof with the same legal force and effect as if executed by
Employee. This appointment is coupled with an interest in and to the inventions
and works of authorship and shall survive Employee's death or disability.
Employee hereby waives and quitclaims to Employer any and all claims of any
nature whatsoever which Employee now or may hereafter have against third parties
for infringement of any patents or copyrights resulting from or relating to any
such application for letters, patent or copyright registrations assigned
hereunder to Employer.
ARTICLE 3
COMPENSATION OF EMPLOYEE
SECTION 3.1 ANNUAL SALARY. As compensation for his/her services hereunder,
Employee shall be paid a salary at the rate of One Hundred Fifty Thousand and
00/100 Dollars ($150,000.00) per year from the Commencement Date. Salary shall
be paid in equal installments not less frequently than twice each month.
SECTION 3.2 QUARTERLY BONUS. The Employee shall be eligible to be paid a
quarterly bonus earned in accordance with the terms set forth on Exhibit 4.2.
SECTION 3.3 TAX WITHHOLDING. Employer shall have the right to deduct or
withhold from the compensation due to Employee hereunder any and all sums
required for federal income and social security taxes and all state or local
taxes now applicable or that may be enacted and become applicable in the future,
for which withholding is required by law.
SECTION 3.4 STOCK OPTIONS. The Employer may, at the Employer's sole
discretion, issue Stock Options to the Employee. All stock options granted the
Employee shall be subject to a stock option agreement, a stock option plan and
such other restrictions as are generally applicable to stock options issued to
employees of the Employer, as each may be amended from time to time.
ARTICLE 4
EMPLOYEE BENEFITS
SECTION 4.1 ANNUAL VACATION. Employee shall be entitled to twenty (20)
business days of paid vacation and five (5) personal during each year of this
Agreement. Employee may be absent from his employment for vacation at such times
as are approved by the Employer's President and CEO. Unused vacation shall not
be carried over into the next year, and will not be paid in the form of cash.
SECTION 4.2 BENEFITS. Employee shall be eligible to participate in benefit
plans provided by Employer, including health, and life insurance coverage should
Employer elect to participate in any such plans.
SECTION 4.3 BUSINESS EXPENSES. Employer shall reimburse Employee for all
appropriate expenses for travel and entertainment by Employee for legitimate
business purposes, provided that they are approved in writing by the person to
whom the Employee reports, and provided that Employee furnishes to Employer
adequate records and documentary evidence for the substantiation of each such
expenditure, as required by the Internal Revenue Code of 1986, as amended.
ARTICLE 5
TERMINATION OF EMPLOYMENT
SECTION 5.1 TERMINATION. Employee's employment hereunder may be terminated
by Employee or Employer as herein provided, without further obligation or
liability, except as expressly provided in this Agreement.
SECTION 5.2 RESIGNATION, RETIREMENT, DEATH OR DISABILITY. Employee's
employment hereunder shall be terminated at any time by Employee's resignation,
or by Employee's retirement, death, or his inability to perform the essential
functions of his position under this Agreement, with or without reasonable
accommodation, for a total of ninety (90) days or more in any continuous two
hundred (200) day period because of a substantial physical or mental impairment
("Disability"). Employer shall not be liable for payment of base or bonus
compensation during any period of disability, though benefits shall continue to
accrue. Notwithstanding anything to the contrary contained herein, in the event
the Employee resigns without Good Reason (as defined below) prior to the end of
the Initial Term, the Employee shall pay to the Employer $150,000.
SECTION 5.3 TERMINATION FOR CAUSE. Employee's employment hereunder may be
terminated for Cause. "Cause" is conduct, as determined by the Chief Executive
Officer or his designee, involving one or more of the following: (i) gross
misconduct by the Employee; or (ii) the willful disregard of the rules or
policies of the Company and the continuation thereof thirty (30) days or more
after delivery to Employee of written notice from the Employer specifying in
reasonable detail the nature of such disregard; or (iii) the material violation
of any noncompetition or nonsolicitation covenant with, or assignment of
inventions obligation to, the Company; or (iv) the conviction of the Employee of
a felony; or (v) the commission of an act of embezzlement, fraud or breach of
fiduciary duty which results in loss, damage or injury to the Company; (vi)
engagement in a specific act or pattern of behavior which impugns the reputation
of the Company or which creates an environment materially non-conducive to the
growth and development of the Company, provided that such pattern of behavior
used as the basis for termination shall be available for such use only if
written notice of such pattern of behavior shall have been given to the
Employee, and if such behavior was again exhibited ten (10) days or more
thereafter; (vii) the failure of the Employee to perform in a material respect
his employment obligations as set forth in this Agreement without proper cause
and the continuation thereof ten (10) days or more after delivery to Employee of
written notice from the Employer specifying in reasonable detail the nature of
such failure. In making any determination of "Cause", the Chief Executive
Officer (or his designee) shall act in good faith and consistent with past
practice. For purposes of this Section, no act, or failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Employer.
SECTION 5.4 TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON.
Employee's employment hereunder may be terminated without Cause upon ten (10)
business days' notice for any reason. Employee's employment may be terminated by
Employee at any time for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean:
(a) failure of the Employer to continue Employee in the position of Senior
Vice President of Business Development for the Chicago region of employer; (b)
material diminution in the nature or scope of the Employee's responsibilities,
duties or authority (provided, however, any general diminution of the business
of the Employer, shall not constitute "Good Reason"); (c) material failure of
the Employer to provide the Employee the compensation and benefits in accordance
with the terms of Articles 3 and 4 hereof, or (d) relocation of Employee outside
the Chicago metropolitan area.
SECTION 5.5 EXPIRATION. Employee's employment hereunder shall be terminated
upon expiration of the Term of Employment as provided in Sections 1.1 and 1.2.
SECTION 5.6 NOTICE OF TERMINATION. Any termination of the Employee's
employment by the Employer or by the Employee (other than termination by reason
of resignation, retirement, or death), shall be communicated by written Notice
of Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall include the specific
termination provision in this Agreement relied upon, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employee's employment under the provision so indicated.
SECTION 5.7 DATE OF TERMINATION. The "Date of Termination" shall be: (a) if
the Employee's employment is terminated by his death, the date of his death; (b)
if the Employee's employment is terminated by reason of Employee's disability,
thirty (30) days after Notice of Termination is given; (c) if the Employee's
employment is terminated for Cause, the date the Notice of Termination is given
or after if so specified in such Notice of Termination; (d) if the Employee's
employment is terminated for any other reason, the date on which a Notice of
Termination is given.
ARTICLE 6
PAYMENTS TO EMPLOYEE UPON TERMINATION
SECTION 6.1 DEATH, DISABILITY OR RETIREMENT. In the event of Employee's
Retirement, Death or Disability, all benefits generally available to Employer's
employees as of the date of such an event shall be payable to Employee or
Employee's estate, in accordance with the terms of any plan, contract,
understanding or arrangement forming the basis for such payment. Employee shall
be entitled to such other payments as might arise from any other plan, contract,
understanding or arrangement between Employee or Employer at the time of any
such event.
SECTION 6.2 TERMINATION FOR CAUSE OR RESIGNATION. In the event Employee is
terminated by Employer for Cause or Employee resigns (other than a Termination
by Employee for Good Reason), neither Employer nor any affiliate shall have any
further obligation to Employee under this Agreement or otherwise, except for
payment to Employee of any and all accrued salary and bonuses, provision of
COBRA health care continuation and otherwise as may be expressly required by
law.
SECTION 6.3 TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON. Subject to
other provisions in this Article 6 to the contrary and during the Initial Term
and any Succeeding Annual Terms only, upon the occurrence of a termination
without Cause by Employer or a Termination for Good Reason by Employee, Employer
shall:
(a) Pay to Employee any and all accrued salary, bonuses and vacation;
(b) Pay to Employee, or in the event of Employee's subsequent death, to
Employee's surviving
spouse, or if none, to Employee's estate, as severance pay or liquidated
damages, or both, during each calendar month for a period extending over the
number of months during which this Agreement would have remained in effect,
without renewal, but for such termination, a sum equal to (i) the monthly rate
of Salary payable under this Agreement for a period of the greater of (a) the
remainder of the Initial Term or Succeeding Term, as applicable and (b) twelve
(12) months, and (ii) an amount equal to the quarterly bonus paid or payable to
Employee over the four (4) quarters immediately prior to Employee's termination;
(c) Cause any stock options issued to Employee which have not lapsed and
which are not otherwise exercisable to be accelerated so as to immediately
exercisable by Employee; Pay the Employer's portion of the COBRA health
insurance continuation premium in the same amount Employer contributed for
Employee's health insurance as of the date of Employee's termination through the
remaining period of months of the Initial Term or Succeeding Term and thereafter
provide COBRA health care continuation at Employee's cost (provided that the
Employee makes the required premium contributions); provided, however, that
Employer's obligation to contribute its portion of the COBRA insurance premium
will cease immediately in the event Employee becomes employed following
termination. Employee agrees to notify Employer immediately regarding such new
employment; and
(d) Provide to Employee such other payments or benefits as may be expressly
required by law.
ARTICLE 7
GENERAL PROVISIONS
SECTION 7.1 NOTICES. Any notices to be given hereunder by either party to
the other shall be in writing and may be transmitted by personal delivery or by
mail, first class, postage prepaid, or by electronic facsimile or email
transmission (with verification of receipt). Mailed notices shall be addressed
to the parties at their respective addresses set forth herein. Each party may
change that address by written notice in accordance with this section. Notices
delivered personally shall be deemed communicated as of the date of actual
receipt. Mailed notices shall be deemed communicated as of one day after the
date of mailing.
SECTION 7.2 GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by, construed and interpreted in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its principles of conflicts of laws. Any action
or proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement or any of the transactions contemplated hereby, shall be
brought against any of the parties in the courts of the Commonwealth of
Massachusetts, and each of the parties irrevocably submits to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding, waives any objection to venue laid therein, agrees
that all claims in respect of any action or proceeding shall be heard and
determined only in any such court and agrees not to bring any action or
proceeding arising out of or relating to this Agreement or any transaction
contemplated hereby in any other court. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world.
SECTION 7.3 ATTORNEY'S FEES AND COSTS. If Employer or Employee commences
any action at law or in equity against arising out of or relating to this
Agreement (other than any statutory cause of action relating to employment,
including but not limited to claims under state and federal employment laws) and
Employer prevails in such action, Employee shall reimburse Employer its
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which Employer may be entitled. This provision shall be
construed as applicable to the entire contract.
SECTION 7.4 ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the subject matter contained herein and contains all of the covenants and
agreements between the parties with respect to that subject matter. Each party
to this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party,
which are not embodied herein, and that no other agreement, statement or promise
not contained in this Agreement shall be valid or binding on either party.
SECTION 7.5 MODIFICATION. Any modification of this Agreement will be
effective only if it is in writing and signed by the Employee and properly
authorized by Employer's Board of Directors and signed by an officer of
Employer.
SECTION 7.6 EFFECT OF WAIVER. The failure of either party to insist on
strict compliance with any of the terms, covenants or conditions of this
Agreement by the other party shall not be deemed a waiver of that term, covenant
or condition, nor shall any waiver or relinquishment of any right or power at
any one time or times be deemed a waiver or relinquishment of that right or
power for all or any other times.
SECTION 7.7 PARTIAL INVALIDITY. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
SECTION 7.8 ASSIGNMENT. The rights and obligations of the parties hereto
shall inure to the benefit of, and shall be binding upon, the successors and
assigns of each of them; provided, however, that the Employee shall not, during
the continuance of this Agreement, assign this Agreement without the previous
written consent of the Employer, and provided, further, that nothing contained
in this Agreement shall restrict or limit the Employer in any manner whatsoever
from assigning any or all of its rights, benefits or obligations under this
Agreement to any successor corporation or entity or to any affiliate of the
Employer without the necessity of obtaining the consent of the Employee.
"Affiliate" as used throughout this Agreement means any person or entity which
directly or indirectly controls, or is controlled by, or is under common control
with, the Employer.
SECTION 7.9 SPECIFIC PERFORMANCE. If there is any violation of the
Employee's obligations herein contained, the Employer, or any of its Affiliates,
shall have the right to specific performance in addition to any other remedy
which may be available at law or at equity.
SECTION 7.10 SURVIVAL OF SECTIONS. The provisions of Sections 2.3, 2.4, 2.5
and 2.6 shall continue in force so long as the Employee remains employed by the
Employer or any Affiliate of the Employer, whether under this Agreement or not,
and whether as a consultant or not, and shall survive any termination of
employment under this Agreement for the periods specified therein.
Notwithstanding the foregoing, the provision of Sections 2.5 shall survive for
only three years following any termination of employment under this Agreement.
SECTION 7.11 INJUNCTIVE RELIEF/ACKNOWLEDGEMENT. Employee understands and
acknowledges that the Employer's Proprietary Information, Inventions and good
will are of a special, unique, unusual, extraordinary character which gives them
a peculiar value, the loss of which cannot be reasonably compensated by damages
in an action at law. Employee understands and acknowledges that, in addition to
any and all other rights or remedies that the Employer may possess, Employer
shall be entitled to injunctive and other equitable relief, without posting a
bond, to prevent a breach or threatened breach of this Agreement (and/or any
provision thereof) by Employee . In the event that a court of appropriate
jurisdiction awards the Company injunctive or other equitable relief due to
Employee's breach of the terms of this Agreement, Employee agrees that the time
periods provided in Article 2.3 of this Agreement shall be tolled for the period
during which Employee is in breach of the Agreement, and shall resume once
Employee complies with such injunctive or other equitable relief.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers as an instrument under seal at Woburn, Massachusetts on this
31 day of August, 2007.
EMPLOYER: EMPLOYEE:
BRIDGELINE SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxxxx
------------------------ -------------------------
Xxxxxx X. Xxxxxx Xxxxxxx Xxxxxxxxx
President & CEO
