EMPLOYMENT AGREEMENT
EXHIBIT
2.2
Bridgeline
Software, Inc.,
a Delaware corporation (the
“Employer” or the
“Company”),
and Xxxxxxx X. Xxxxxxxxxx (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
January 31, 2008 (the “Commencement
Date”), and terminating on January 31, 2010
(“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
renewal is not 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 Cleveland and Minneapolis regions
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 0000 Xxxx 0xx Xxxxxx,
Xxxxxxxxx,
Xxxx 00000 or at such other location in the Cleveland 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 Employment
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.
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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 Employment
Term
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 (except as otherwise provided in Subsection (g) below), 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
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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 (except as otherwise provided in Subsection (g) below), 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 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.
(g) Nothing
in this Section 2.3 shall restrict the Employee from providing Competitive
Services to any organization, including but not limited to a Direct Competitor,
as a shareholder, member, officer, director, stockholder, agent, joint venturer,
investor, employee, consultant or in any other capacity to such
organization in the event Employee’s employment by Employer is terminated
without Cause or for Good Reason in accordance with the terms of Section 5.4
hereof.
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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.
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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 services
hereunder, Employee shall be paid a salary (“Salary”) at the rate of One Hundred
Forty Thousand and 00/100 Dollars ($140,000.00) 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 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.
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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.
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; 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 five (5) 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 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.
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 Executive Vice
President and General Manager for the Cleveland and Minneapolis regions 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”); or (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.
Section
5.5 Expiration. Employee's
employment hereunder shall be terminated upon expiration of the Employment
Term
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
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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 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
remainder of the Initial Term or Succeeding Term, as applicable and (ii)
quarterly bonus payments for a period of the remainder of the Initial Term,
or
the Succeeding Term, as applicable;
(c) Cause
any
stock options issued to Employee which have not lapsed and which are not
otherwise exercisable to be accelerated so as to be 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 and is eligible for
alternative coverage. 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.
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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 (1) 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 State
of Delaware, 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 State of Delaware,
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)
the
substantially prevailing party shall be entitled to reimbursement of its
reasonable attorneys’ fees, costs and necessary disbursements in addition to any
other relief to which it 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.
|
_________
________
Employee
Bridgeline
|
8
Section
7.9
Specific Performance. If
there is any violation of the obligations herein contained, the Employer and
Employee, or any of their 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.
[SIGNATURE
PAGE FOLLOWING]
|
_________
________
Employee
Bridgeline
|
9
IN
WITNESS WHEREOF, the parties have
executed this Employment Agreement (in the case of Employer, by its duly
authorized officers) as an instrument under seal this 31st day of
January, 2008.
| Employer: | Employee: | |||
| Bridgeline Software, Inc. | ||||
|
By:
/s/
Xxxxxx X. Xxxxxx
|
/s/
Xxxxxxx X. Xxxxxxxxxx
|
|||
|
Xxxxxx
X.
Xxxxxx
|
Xxxxxxx
X.
Xxxxxxxxxx
|
|||
|
President
& CEO
|
|
|
_________
________
Employee
Bridgeline
|
10
