EXHIBIT 10.20
INFORMATION ADVANTAGE, INC.
EMPLOYMENT AGREEMENT
WITH XXXX XXXXXXX
THIS AGREEMENT is entered into effective as of the 8th day of January,
1999, by and between INFORMATION ADVANTAGE, INC., a Delaware corporation (the
"Company"), and XXXX XXXXXXX, a Minnesota resident ("Executive").
WHEREAS, the Company desires to engage Executive in the position of Vice
President and Chief Financial Officer;
WHEREAS, Executive desires to be employed by the Company as its Vice
President and Chief Financial Officer and to be assured of reasonable tenure and
terms and conditions of employment with the Company; and
WHEREAS, both parties recognize the critical importance to the Company, its
employees and investors, of preserving the confidentiality of the Company's
trade secrets and confidential information and of protecting the Company against
competition from former executives or other key employees of the Company
following their separation from the Company;
NOW, THEREFORE, in consideration of the foregoing premises and the parties'
mutual covenants and undertakings contained in this Agreement, the sufficiency
of which is hereby acknowledged, the Company and Executive agree as follows:
1. EMPLOYMENT AND TERM. Subject to the terms and conditions herein provided, the
Company hereby hires Executive, and Executive hereby accepts employment by the
Company for a term commencing as of the date hereof and continuing for a minimum
of one (1) year thereafter. The employment term shall automatically extend for
an additional one (1) year following the expiration of each employment year
(February 1 through January 31 of each year) unless, on or before January 1 of
each year, one party has notified the other party in writing that this Agreement
will not be extended for an additional year. In the event of such a
notification, the employment term of Executive will expire at the expiration of
the initial one (1) year employment term, or any extended term hereunder as the
case may be, without further obligation for either party, except as described
elsewhere in this Agreement or in any stock option agreements then in effect
between the Company and Executive. In addition, the Company may terminate the
employment of Executive upon thirty (30) days notice, without cause, provided
the Company pays Executive severance pay as described in paragraph 3.c of this
Agreement.
Notwithstanding the foregoing, the Company may terminate Executive's
employment for cause without notice and without further obligation of any kind
to Executive. For purposes of this Agreement, "cause" shall have the meaning set
forth in the Severance Agreement attached hereto as Exhibit A.
If the Executive voluntarily resigns for Good Reason the Company shall pay
Executive severance pay as described in paragraph 3.c of this Agreement. For
purposes of this Agreement, "Good Reason" shall have the meaning set forth in
the Severance Agreement attached hereto as Exhibit A.
It is further agreed that the term of Executive's employment under this
Agreement shall automatically terminate in the event of Executive's death. In
the event Executive becomes mentally or physically disabled during the term of
employment hereunder, his employment under this Agreement shall terminate as of
the date such disability is established. As used in this subparagraph, the term
"disabled" means suffering from any mental or physical condition, other than the
illegal use of drugs, which renders Executive unable to perform substantially
all of Executive's duties and services under this Agreement in a satisfactory
manner (an "impaired condition") for a period of ninety (90) consecutive days.
The date that Executive's disability is established shall be the ninety-first
(91st) day upon which such impaired condition exists. Upon termination for
disability, Executive shall not be entitled to receive severance pay, but shall
be entitled to receive continuation of his base salary (as herein defined) for a
period
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of one hundred eighty (180) days after the date of such termination, payable in
periodic installments in accordance with the standard payroll practices of the
Company in effect from time to time. If the Company maintains a disability
policy covering Executive, then the amount of payments to be made by the Company
to Executive pursuant to this provision shall be reduced by any amounts to be
paid to Executive under any such insurance policy during such one hundred eighty
(180) day period.
2. DUTIES AND REPRESENTATIONS OF EXECUTIVE. During Executive's employment
hereunder, he shall serve as the Company's Vice President and Chief Financial
Officer and will have the day-to-day responsibility for making decisions
relating to all aspects of the Company's financial, administrative, human
resource and internal operational systems, and shall have authority to and shall
perform such functions and exercise such powers and duties as are customary for
such position, subject always to the control of the Company's Board of Directors
and its President and Chief Executive Officer. Executive shall devote his full
time, attention, knowledge and skill exclusively to the loyal service of the
Company and shall perform all duties reasonably assigned to him by said Board of
Directors. Additionally, Executive shall do such traveling as may reasonably be
required by the Company in connection with the performance of his duties and
responsibilities. Executive represents and warrants to the Company that (a) his
acceptance of employment under this Agreement and his performance of the duties
contemplated herein are not in conflict with any obligation, undertaking or
agreement between Executive and any third party including, without limitation,
any of Executive's former employers, and (b) he has not and will not, during the
course of his employment with the Company, disclose or utilize without
permission any confidential or proprietary information, trade secrets,
materials, documents, or property owned by any third party including, without
limitation, any of Executive's former employers.
3. COMPENSATION. The Company shall pay to Executive the following compensation:
a. BASE SALARY. The Company shall pay to Executive an annual base
salary of One Hundred Eighty Thousand Dollars ($180,000), payable in
periodic installments in accordance with the standard payroll
practices of the Company in effect from time to time. Executive's base
salary shall be reviewed for potential adjustment on the basis of
performance from time to time.
b. BONUSES. Bonuses shall be paid to Executive as the Board of
Directors, President and the Chief Executive Officer of the Company
may determine in their discretion from time to time pursuant to the
Company's then-existing executive compensation practices. Executive's
variable on-target earnings (salary and bonuses) shall be $240,000 for
fiscal year 2000, based on achievement of objectives and revenue goals
agreed upon from time to time by the Company and Executive. Executive
shall be entitled to receive a $5,000 bonus each quarter the Company
meets its quarterly revenue and earnings targets. Executive shall be
entitled to receive an additional $5,000 bonus each quarter Executive
achieves management business objectives agreed upon from time to time
based on quarterly review by the Company and Executive. Executive
shall be entitled to receive a $20,000 bonus at year end each year the
Company meets its annual revenue and earnings targets. Such bonus
shall be paid in accordance with the standard payroll practices of the
Company in effect from time to time. Executive's bonuses shall be
reviewed for potential adjustment on the basis of performance from
time to time.
x. XXXXXXXXX PAY. In the event the Company gives notice to the
Executive that this Agreement will not be extended or upon termination
of the Executive's employment by the Company, other than for cause as
defined in paragraph 1, the Executive shall be entitled to receive his
then current base salary for an additional six (6) months following
the date of termination, to be paid as though the Executive had
remained in the employ of the Company. In addition, Executive and the
Company shall enter into the Severance Agreement attached hereto as
Exhibit A, to be effective as of the date hereof. The first sentence
of this subparagraph 3c.shall not apply to the extent that Executive
is entitled to severance payments under the Severance Agreement.
Except for bonuses earned by Executive under subparagraph 3.b hereof
for quarters or years, as applicable, in which Executive was employed
for the entire quarter or year, as applicable, and stock options
Executive is entitled to pursuant to the Severance Agreement and Stock
Option
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Agreement (referenced in subparagraph 3d.), the severance pay
described in this subparagraph 3c shall be in lieu of any other
compensation of any kind otherwise payable to Executive under this
Agreement after termination.
d. STOCK OPTION PLAN. Executive and the Company shall enter into a
Stock Option Agreement pursuant to the Company's 1997 Equity Incentive
Plan, to be dated effective January 8, 1999, whereby Executive is
granted 130,000 stock options to purchase shares of the Company's
common stock, which Agreement is attached hereto as Exhibit B.
4. ADDITIONAL BENEFITS. Executive shall be entitled to those additional Company
benefits and perquisites which may be customarily made available to other
executive employees of the Company. Without limiting the foregoing, Executive
shall be eligible to participate in any pension plan, or group life, health or
accident insurance, or any such other plan or policy which may presently be in
effect or which may hereafter be adopted by the Company for the benefit of its
executive employees and corporate officers generally. Furthermore, Executive
shall be entitled to the following additional benefits:
a) EXPENSE REIMBURSEMENT. During the term of Executive's employment
under this Agreement, the Company shall bear reasonable and ordinary
business expenses incurred by Executive in performing his duties,
including travel and living expenses while away from home on business
in the service of the Company, and long distance home telephone
expenses, provided that Executive accounts promptly for such expenses
to the Company in the manner reasonably prescribed from time to time
by the Company.
b) VACATION. During the term of Executive's employment under this
Agreement, Executive shall be entitled to take up to three (3) weeks
of vacation per year with pay, at such times as shall be mutually
convenient to the Company and Executive. Vacation time must be used
within the applicable employment year and may not be accumulated.
5. NONCOMPETITION, CONFIDENTIALITY AND INVENTIONS. Executive and the Company
shall enter into the Noncompetition, Confidentiality and Inventions Agreement
attached hereto as Exhibit C, to be effective as of the date hereof.
6. ASSIGNMENT. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of the Company. The term "successor" includes any successor (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets.
The Executive may not assign this Agreement nor any rights hereunder. Any
purported or attempted assignment or transfer by Executive of this Agreement or
any of Executive's duties, responsibilities or obligations hereunder shall be
void.
7. NOTICES. All notices, requests, demands and other communications under this
Agreement shall be in writing, shall be deemed to have been duly given on the
date of service if personally served on the parties to whom notice is to be
given, or on the second day after mailing if mailed to the parties to whom
notice is given, by first class mail, postage prepaid, and properly addressed as
follows:
If to the Company, at:
INFORMATION ADVANTAGE, INC.
Attn: Xxxxx X. Xxxx
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxx, XX 00000
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If to Executive, at:
XXXX XXXXXXX
0000 Xxxxxxxxx Xxxxx
Xxxxx, XX 00000
Any party may change the address for the purpose of this paragraph by
giving the other written notice of the new address in the manner set forth
above.
8. CONSTRUCTION AND SEVERABILITY. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Minnesota. In the event any provision of this Agreement shall be held illegal or
invalid for any reason, said illegality or invalidity shall not in any way
affect the legality or validity of any other provision hereof, it is the
intention of the parties hereto that the Company be given the broadest possible
protection respecting its confidential information and trade secrets and
respecting competition by Executive following his separation from the Company.
9. ARBITRATION. Any claims or disputes of any nature between the parties arising
from or related to the performance, breach, termination, expiration, application
or meaning of this Agreement shall be resolved exclusively by arbitration before
the American Arbitration Association in Minneapolis, Minnesota, pursuant to the
Association's rules for commercial arbitration.
The decision of the arbitrator(s) shall be final and binding upon both parties.
Judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. In the event of submission of any dispute to
arbitration, each party shall, not later than thirty (30) days prior to the date
set for hearing, provide to the other party and to the arbitrator(s) a copy of
all exhibits upon which the party intends to rely at the hearing and a list of
all persons whom each party intends to call as witnesses at the hearing.
This paragraph 9 shall have no application to claims by the Company asserting
violations of or seeking to enforce, by injunction or otherwise, the terms of
the Noncompetition, Confidentiality and Inventions Agreement attached hereto as
Exhibit C. Such claims may be maintained by the Company in a lawsuit subject to
the terms of paragraph 10 below.
10. VENUE. Any action at law, suit in equity or judicial proceeding arising
directly, indirectly or otherwise in connection with, out of, related to or from
this Agreement or any provision hereof shall be litigated only in the courts of
the State of Minnesota, County of Hennepin. Executive waives any right Executive
may have to transfer or change the venue of any litigation brought against
Executive by the Company.
11. ENTIRE AGREEMENT. This Agreement and the Exhibits hereto set forth the
entire agreement between the Company and Executive with respect to his
employment by the Company and there are no undertakings, covenants or
commitments other than as set forth herein. This Agreement and the Exhibits
hereto may not be altered or amended, except by a writing executed by the party
against whom such alteration or amendment is to be enforced. This Agreement and
the Exhibits supersedes any and all prior understandings or agreements between
the parties.
12. COUNTERPARTS. This Agreement may be simultaneously executed in any number of
counterparts, and such counterparts executed and delivered, each as an original,
shall constitute but one in the same instrument.
13. CAPTIONS AND HEADINGS. The captions and paragraph headings used in this
Agreement are for convenience of reference only, and shall not affect the
construction or interpretation of this Agreement or any of the provisions
hereof.
14. SURVIVAL. The parties expressly acknowledge and agree that the provisions of
this Agreement which by their express or implied terms extend beyond the
expiration of this Agreement or the termination of Executive's employment
hereunder, shall continue in full force and effect, notwithstanding Executive's
termination of employment hereunder or the expiration of this Agreement.
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15. WAIVERS. No failure on the part of either party to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right or
remedy granted hereby or by any related document or by law.
16. RELIANCE BY THIRD PARTIES. This Agreement is intended for the sole and
exclusive benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns, and
no other person or entity shall have any right to rely on this Agreement or to
claim or derive any benefit therefrom absent the express written consent of the
party to be charged with such reliance or benefit.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
and Executive has hereunto set his name as of the day and year first above
written.
EXECUTIVE: COMPANY:
INFORMATION ADVANTAGE, INC.
/s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxx
-------------------------------- -----------------------------------------
Xxxx Xxxxxxx Xxxxx X. Xxxx
Its: President and Chief Executive Officer
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EXHIBIT A
INFORMATION ADVANTAGE, INC.
SEVERANCE AGREEMENT
THIS AGREEMENT is entered into as of January 8, 1999, by and between Xxxx
Xxxxxxx (the "Executive"), and INFORMATION ADVANTAGE, INC., a Delaware
corporation (the "Company").
WHEREAS, the Executive is employed by the Company; and
WHEREAS, pursuant to the terms of the Company's 1997 Equity Incentive Plan
and the stock option agreements between the Company and the Executive, the
Company has granted to the Executive options to purchase shares of its common
stock (the "Options"); and
WHEREAS, the Company desires to provide for accelerated vesting of the
Options upon the occurrence of certain events.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. TERM OF AGREEMENT. This Agreement shall remain in effect from the
date hereof until the earlier of:
(a) The date when the Executive's employment with the Company
terminates for any reason not described in Section 5(a); or
(b) The date when the Company has met all of its obligations under
this Agreement following a termination of the Executive's employment with
the Company for a reason described in Section 5(a).
2. DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement, "Change
in Control" shall mean the occurrence of any of the following events after the
date of this Agreement:
(a) The consummation of a merger or consolidation of the Company with
or into another entity or any other corporate reorganization, if more than
50% of the combined voting power of the continuing or surviving entity's
securities outstanding immediately after such merger, consolidation or
other reorganization is owned by persons who were not stockholders of the
Company immediately prior to such merger, consolidation or other
reorganization; provided that any rights Executive may become entitled to
due to such commitment shall not be effective until the consummation of
such merger, consolidation or other corporate reorganization;
(b) The sale, transfer or other disposition of all or substantially
all of the Company's assets;
(c) A change in the composition of the Board, as a result of which
fewer than 66% of the incumbent directors are directors who either (i) had
been directors of the Company on the date 24 months prior to the date of
the event that may constitute a Change in Control (the "original
directors") or (ii) were elected, or nominated for election, to the Board
with the affirmative votes of at least a majority of the aggregate of the
original directors who were still in office at the time of the election or
nomination and the directors whose election or nomination was previously so
approved; or
(d) Any transaction as a result of which any person is the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing at least 50% of the
total voting power represented by the Company's then outstanding voting
securities. For purposes of this Subsection (d), the term "person" shall
have the same meaning as when used in sections 13(d) and 14(d) of the
Exchange Act but shall exclude (i) a trustee or
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other fiduciary holding securities under an employee benefit plan of the
Company or of subsidiary of the Company and (ii) a corporation owned
directly or indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of the common stock of the Company.
(e) The entry by the Company into an agreement to affect any
transaction evidenced in Sections 2(a)-(d) hereof.
A transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company's incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the Company's securities immediately before such transaction.
Notwithstanding any other provision in this Agreement, the rights of Executive
upon the occurrence of a Change in Control, as defined in Section 2(e) hereof,
shall not be effective until the transaction referenced therein occurs.
3. DEFINITION OF GOOD REASON. For purposes of this Agreement, "Good Reason"
shall mean that the Executive:
(i) Has incurred a reduction in his title, authority or
responsibilities as an employee of the Company, including, but not
limited to, (1) a reduction or elimination of his authority to approve
expenditures, (2) a reduction of his authority to hire, promote,
demote or terminate subordinates, (3) a reduction in the number of
employees reporting to him, except as a result of a Company-wide
reduction of employees generally as a result of poor financial
performance of the Company, (4) a change in his reporting relationship
such that he no longer reports to the Company's Chief Executive
Officer or President, (5) a material increase in his travel
obligations, or (6) if a successor (whether direct or indirect and
whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business
and/or assets, does not, by an agreement in substance and form
satisfactory to the Executive, assume this Agreement and agree
expressly to perform this Agreement in the same manner and to the same
extent as the Company would be required to perform it in the absence
of a succession
(ii) Has incurred a reduction in his base salary, other than
pursuant to a Company-wide reduction of salaries for employees of the
Company generally;
(iii) Has incurred a reduction in his opportunity to earn a cash
bonus, other than pursuant to a reduction of bonus opportunities for
executives of the Company generally;
(iv) Has been regularly excluded from consideration of matters
within his present area of responsibility;
(v) Has been subjected to procedures not generally applicable to
other executives of the Company; or
(vi) Has been notified that his principal place of work as an
employee of the Company will be relocated by a distance of 30 miles or
more.
4. DEFINITION OF CAUSE. For purposes of this Agreement, "Cause" shall mean:
(a) The unauthorized use or disclosure of the confidential information
or trade secrets of the Company, which use or disclosure causes material
harm to the Company;
(b) Conviction of, or a plea of "guilty" or "no contest" to, a felony
under the laws of the United States or any state thereof which has an
adverse effect on the Company;
(c) Intentional failure to perform material duties as the Chief
Financial Officer of the Company or a duty in reckless disregard of
the consequences of action taken by the Executive; or
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(d) Continued failure to perform assigned duties after receiving
written notification from the Board of Directors.
The items set forth above identify the acts or omissions that constitute
"Cause". These items are not an exclusive list of all acts or omissions that the
Company (or a subsidiary of the Company) may consider as grounds for the
discharge of the Employee.
5. CONDITIONS FOR VESTING OF STOCK OPTIONS.
(a) TERMINATION OF EMPLOYMENT. The Executive shall be entitled to the
accelerated vesting of stock options described in Section 6 if one of
the following events occurs:
(i) If after a Change in Control, the Executive voluntarily
resigns his employment for Good Reason; or
(ii) If after a Change in Control, the Company terminates the
Executive's employment for any reason other than Cause.
(b) CHANGE IN CONTROL. The limitations set forth below must be met in
addition to those in Paragraph 5(a) before the Executive shall be
entitled to the accelerated vesting of stock options described in
Section 6 upon a Change in Control:
(i) In the case of both ISOs and NSOs the acceleration of
exercisability shall not occur without the Optionee's written
consent, and
(ii) The Optionee may consent to acceleration of exercisability
separately as to ISOs, NSOs and/or as to a specified number of
shares subject to an ISO or NSO.
(c) POOLING OF INTERESTS. Subsection (a) above notwithstanding, if the
Company and the other party to the transaction constituting a Change in
Control agree that such transaction is to be treated as a "pooling of
interests" for financial reporting purposes, and if such transaction in
fact is so treated, then the accelerated vesting of stock options described
in Section 6 shall not occur to the extent that the Company's independent
public accountants and such other party's independent public accountants
separately determine in good faith that such acceleration would preclude
the use of "pooling of interests" accounting. If the accountants determine
that such acceleration would preclude the use of "pooling of interests"
accountings, Executive's options shall continue to vest as provided in the
stock option agreement(s) and Section 6 of this Agreement.
6. SCOPE OF VESTING OF STOCK OPTIONS. If the conditions described in
Section 5 are satisfied, then the Executive's stock options shall vest as
follows:
(a) All options to purchase shares of the Company's Common Stock held
by the Executive at the time of his termination of employment by the
Company for any reason other than Cause, or his voluntary resignation for
Good Reason, shall immediately become vested and exercisable in full,
whether such options were granted before or after the date of this
Agreement.
However, if and to the extent that the Executive elects not to accelerate
the vesting and exercisability of certain ISOs or NSOs, then the Executive
vesting and exercisability rights shall remain in effect as specified in
any Equity Incentive Agreement with the Company, except that all provisions
terminating vesting or requiring exercise before or within a specified time
period ending on or subsequent to termination of Employment shall lapse and
Executive shall continue to vest in his options or stock as if his
employment were continuing. Exercise rights shall terminate only at the
expiration of the term of the Option.
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(b) All shares of the Company's Common Stock held by the Executive at
the time of his employment termination shall immediately vest in full and
the Company's right to repurchase such shares shall lapse, whether such
shares were issued before or after the date of this Agreement.
To the extent provided in this Section 6, this Agreement shall be deemed to be
an amendment of the exercisability and vesting provisions of all stock option
agreements, stock purchase agreements and similar instruments executed by the
Executive and the Company.
7. CONDITIONS FOR SEVERANCE PAYMENTS.
(a) TERMINATION OF EMPLOYMENT. In addition to the accelerated vesting
of stock options described in Sections 5 and 6 above, the Executive shall
be entitled to receive a severance payment (the "Severance Payment") equal
to twelve (12) months of his base salary as it exists immediately prior to
the Change in Control if one of the following events occurs:
(i) If after a Change in Control, the Executive voluntarily
resigns his employment for Good Reason; or
(ii) If after a Change in Control, the Company terminates the
Executive's employment for any reason other than Cause.
(b) POOLING OF INTERESTS. Subsection (a) above notwithstanding, if the
Company and the other party to the transaction constituting a Change in
Control agree that such transaction is to be treated as a "pooling of
interests" for financial reporting purposes, and if such transaction in
fact is so treated, then the Severance Payment described in Section 7 shall
not occur to the extent that the Company's independent public accountants
and such other party's independent public accountants separately determine
in good faith that such acceleration would preclude the use of "pooling of
interests" accounting.
8. LIMITATION ON PAYMENTS.
Any other provision of this Agreement notwithstanding, the Company shall be
required to make any payment or property transfer to, or for the benefit of, the
Executive (under this Agreement or otherwise) even if it would be nondeductible
by the Company by reason of section 280G of the Internal Revenue Code of 1986,
as amended (the "Code"), or would subject the Executive to the excise tax
described in section 4999 of the Code. All calculations required by this Section
8 shall be performed by the independent auditors retained by the Company most
recently prior to the Change in Control (the "Auditors"), based on information
supplied by the Company and the Executive, and shall be binding on the Company
and the Executive. All fees and expenses of the Auditors shall be paid by the
Company.
9. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. The Company shall require any successor
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets, by an agreement in substance and form
satisfactory to the Executive, to assume this Agreement and to agree
expressly to perform this Agreement in the same manner and to the same
extent as the Company would be required to perform it in the absence of a
succession. For all purposes under this Agreement, the term "Company" shall
include any successor to the Company's business and/or assets which
executes and delivers the assumption agreement described in this subsection
(a) or which becomes bound by this Agreement by operation of law.
(b) EXECUTIVE'S SUCCESSORS. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of, and be enforceable by,
the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
10. MERGER OF PRIOR AGREEMENTS; CONFLICTING PROVISIONS. The provisions of
this Agreement and the provisions of any other agreement entered into by and
between the Company and the Executive related to the subject
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matter hereof shall be applied and interpreted in a manner consistent with each
other so as to carry out the purposes and intent of the parties hereof.
Notwithstanding the foregoing, to the extent the provisions of this Agreement
and the provisions of any other agreement entered into by and between the
Company and the Executive related to the subject matter hereof conflict, the
provisions of this Agreement shall govern.
11. TAIL INSURANCE. If the Company purchases a tail insurance policy to
cover directors of the Company prior to the Change in Control for any period of
time after the Change in Control, the Company shall purchase the same coverage
for the Executive.
12. MISCELLANEOUS PROVISIONS.
(a) NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified
mail, return receipt requested and postage prepaid. In the case of the
Executive, mailed notices shall be addressed to him at the home address
which he most recently communicated to the Company in writing. In the case
of the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Secretary.
(b) WAIVER. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and by an authorized officer of the
Company (other than the Executive). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(c) SEVERABILITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(d) NO RETENTION RIGHTS. This Agreement does not confer upon the
Executive any right to continued employment with the Company for any period
of specific duration. The Company or any subsidiary of the Company and the
Executive each hereby expressly reserve their rights to terminate the
Executive's employment at any time and for any reason, with or without
Cause.
(e) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Minnesota.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
Xxxx Xxxxxxx
INFORMATION ADVANTAGE, INC.
By: Xxxxx X. Xxxx
Its: President and Chief Executive Officer
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EXHIBIT B
INFORMATION ADVANTAGE, INC.
INCENTIVE STOCK OPTION AGREEMENT
1997 EQUITY INCENTIVE PLAN
Information Advantage, Inc., a Delaware corporation (the "Company"), has
granted to Xxxx Xxxxxxx (the "Optionee"), an option (the "Option") to purchase a
total of 130,000 shares of common stock of the Company (the "Common Shares"), at
the price set forth herein, and in all respects subject to the terms,
definitions and provisions of this Agreement and the Information Advantage, Inc.
1997 Equity Incentive Plan (as Adopted Effective September 24, 1997), as amended
from time to time (the "Plan"), which is incorporated herein by reference.
Unless otherwise defined herein, the terms used herein shall have the
definitions and meanings set forth in the Plan.
1. NATURE OF THE OPTION. This Option is intended to qualify as an Incentive
Stock Option as defined in Section 422 of the Code.
2. EXERCISE PRICE. The Exercise Price is $7.75 for each Common Share, which
Exercise Price is not less than the Fair Market Value per Common Share on the
date of grant set forth below (the "Date of Grant").
3. EXERCISE OF OPTION. This Option shall be exercisable during its term in
accordance with the provisions of this Agreement and the Plan as follows:
a. RIGHT TO EXERCISE.
i. Subject to the other terms and conditions in this Agreement
and the Plan, Optionee may exercise this Option as provided in this
subsection 3(i)(a). Commencing on the Date of Grant, this Option may
be exercised by Optionee as follows:
Cumulative percentage of
Years expired since Common Shares as to
Date of Grant Which Option Is Exercisable
------------------- ---------------------------
0 0%
1 20%
2 40%
3 60%
4 80%
5 100%
ii. This Option may not be exercised for a fraction of a share or
for less than fifty (50) shares.
iii. In the event of Optionee's death, Disability or termination
of employment, the exercisability of the Option is governed by
Sections 7 and 8 below.
iv. In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in Section 10
below.
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v. Upon a Change in Control, this Option shall be exercisable in
accordance with Section 5.5 of the Plan and in accordance with any
Severance Agreement between the Optionee and the Company.
vi. This Option shall be treated as a nonstatutory stock option
to the extent that the aggregate fair market value of common shares
with respect to which any incentive stock option, granted under any
incentive stock option plan of the Company and exercisable for the
first time by Optionee during any calendar year exceeds $100,000. For
purposes of the preceding sentence, (i) incentive stock options which
are accelerated after a change in control shall be accelerated so that
the last options to vest under the normal vesting schedule shall be
the first options to be accelerated, and (ii) the fair market value of
shares issued pursuant to the exercise to incentive stock options
shall be determined as of the time the incentive stock option with
respect to such shares was granted.
b. METHOD OF EXERCISE. This Option shall be exercisable by written
notice which shall state the election to exercise the Option, the number of
Common Shares in respect of which the Option is being exercised, and such
other representations and agreements as to the Optionee's investment intent
with respect to such Common Shares as may be required by the Company
pursuant to the provisions of the Plan. Such written notice shall be signed
by the Optionee and shall be delivered in person or by certified mail to
the Controller of the Company. The written notice shall be accompanied by
payment of the Exercise Price. This Option shall be deemed to be exercised
upon receipt by the Company of such written notice accompanied by the
timely payment of the Exercise Price.
No Common Shares will be issued pursuant to the exercise of this Option
unless such issuance and such exercise shall comply with all relevant provisions
of law and the requirements of any stock exchange upon which the Common Shares
may then be listed. Assuming such compliance, for income tax purposes the Common
Shares shall be considered transferred to the Optionee on the date on which the
Option is exercised with respect to such Common Shares.
4. OPTIONEE'S REPRESENTATIONS. In the event the Common Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933 ("Act"), as amended, at the time this Option is
exercised, Optionee shall, concurrent with the exercise of all or any portion of
this Option, deliver to the Company an investment representation statement in
the form requested by the Company.
5. METHOD OF PAYMENT. Payment of the Exercise Price shall be by (i) cash or
(ii) check, bank draft or money order.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of Common Shares upon such exercise or the method of payment of
consideration for such Common Shares would constitute a violation of any
applicable federal or state securities or other law or regulation. As a
condition to the exercise of this Option, the Company may require Optionee to
make any representation and warranty to the Company as may be required by any
applicable law or regulation.
7. TERMINATION OF EMPLOYMENT. Upon the termination of the employment of
Optionee prior to the expiration of the Option, the following provisions shall
apply:
a. Upon the Involuntary Termination of Optionee's employment, as
defined in Section 19.15 of the Plan, or the voluntary termination or
resignation of Optionee's employment, the Optionee may exercise the Option
to the extent the Optionee was entitled to exercise the Option at the date
of such employment termination for a period of thirty (30) days after the
date of such employment termination, or until the term of the Option has
expired, whichever date is earlier. To the extent the Optionee was not
entitled to exercise this Option at the date of such employment
termination, or if Optionee does not exercise this Option within the time
specified herein, this Option shall terminate.
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b. Upon the termination of Optionee's employment for Cause, as defined
in Section 19.4 of the Plan, the Option shall terminate immediately.
8. DEATH OR DISABILITY OF OPTIONEE. Upon the death or Disability, as
defined herein, of Optionee prior to the expiration of the Option, the following
provisions shall apply:
a. If the Optionee is at the time of his or her Disability employed by
the Company, a Parent, a Subsidiary or an Affiliate, and has been in
continuous employment (as determined by the Committee in its sole
discretion) since the Date of Grant of the Option, then the Option may be
exercised by the Optionee for one (1) year following the date of such
Disability or until the expiration date of the Option, whichever date is
earlier, but only to the extent the Optionee was entitled to exercise the
Option at the time of his or her Disability. For purposes of this Section
8, the term "Disability" shall mean a permanent and total disability as
defined in Section 22(e)(3) of the Code, unless the Optionee is employed by
the Company, a Parent, a Subsidiary or an Affiliate, pursuant to an
employment agreement which contains a definition of "Disability," in which
case such definition shall control. The Committee, in its sole discretion,
shall determine whether an Optionee has a Disability and the date of such
Disability.
b. If the Optionee is at the time of his or her death employed by the
Company, a Parent, a Subsidiary or an Affiliate, and has been in continuous
employment (as determined by the Committee in its sole discretion) since
the Date of Grant of the Option, then the Option may be exercised by the
Optionee's estate or by a person who acquired the right to exercise the
Option by will or the laws of descent and distribution, for one (1) year
following the date of the Optionee's death or until the expiration date of
the Option, whichever date is earlier, but only to the extent the Optionee
was entitled to exercise the Option at the time of death.
c. If the Optionee dies within thirty (30) days after the Involuntary
Termination of Optionee's employment with the Company, a Parent, a
Subsidiary or an Affiliate the Option may be exercised for nine (9) months
following the date of Optionee's death or the expiration date of the
Option, whichever date is earlier, by the Optionee's estate or by a person
who acquires the right to exercise the Option by will or the laws of
descent or distribution, but only to the extent the Optionee was entitled
to exercise the Option at the time of Involuntary Termination.
9. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in any
manner otherwise than by will or by the laws of descent or distribution, and may
be exercised during the lifetime of Optionee only by him or her. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
10. TERM OF OPTION. This Option may not be exercised more than ten (10)
years from the Date of Grant of this Option, and may be exercised during such
term only in accordance with the Plan and the terms of this Agreement.
11. ADJUSTMENT OF NUMBER OF COMMON SHARES. In accordance with Article 11 of
the Plan, the Committee shall adjust the number of Common Shares as to which
this Option is exercisable as it, in its sole discretion, deems appropriate.
12. EARLY DISPOSITION OF STOCK. Optionee understands that if he or she
disposes of any Common Shares received under this Option within two (2) years
after the Date of Grant or within one (1) year after such Common Shares were
transferred to him or her, he or she will be treated for federal income tax
purposes as having received ordinary income at the time of such disposition in
an amount generally measured by the difference between the price paid for the
Common Shares and the lower of the fair market value of the Common Shares at the
date of the exercise or the fair market value of the Common Shares at the date
of disposition. The amount of such ordinary income may be measured differently
if Optionee is an officer, director or ten percent (10%) shareholder of the
Company, or if the Common Shares were subject to a substantial risk of
forfeiture at the time they were transferred to Optionee. OPTIONEE HEREBY AGREES
TO NOTIFY THE COMPANY IN WRITING WITHIN 30 DAYS AFTER THE DATE OF ANY SUCH
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DISPOSITION. Optionee understands that if he or she disposes of such Common
Shares at any time after the expiration of such two-year and one-year holding
periods, any gain on such sale will be taxed as long-term capital gain.
13. CONFLICT BETWEEN THIS AGREEMENT AND THE PLAN. This Option is subject
to, and the Company and the Optionee agree to be bound by, all of the terms and
conditions of the Plan, as the same may be amended from time to time in
accordance with its terms. Pursuant to the Plan, the Committee is vested with
conclusive authority to interpret and construe the Plan and this Agreement, and
is authorized to adopt rules and regulations for carrying out the Plan. A copy
of the Plan is available for inspection during business hours by the Optionee at
the Company's principal office. In the event there is any inconsistency or
discrepancy between the provisions of this Agreement and the terms and
conditions of the Plan, the terms and conditions of the Plan, as interpreted by
the Committee, shall govern and prevail.
14. NOTICES. Any notice to be given to the Company shall be addressed to
the Company in care of its Controller at its principal office, and any notice to
be given to the Optionee shall be addressed to the Optionee at the address set
forth beneath the Optionee's signature hereto, or at such other address as the
Optionee may hereafter designate in writing to the Company. Any such notice
shall be deemed duly given when addressed as above and delivered in person, or
when deposited with the United States Postal Service by registered or certified
mail, return receipt requested, or when deposited with a courier with written
evidence of receipt.
15. RULES OF CONSTRUCTION. This Agreement and the Plan shall be construed
and enforced in accordance with the laws of the State of Delaware, other than
any choice of law rules as applied in the State of Delaware.
DATE OF GRANT: January 8, 1999 INFORMATION ADVANTAGE, INC.
By:
---------------------------------------
Xxxxx X. Xxxx
Title: President and Chief Executive
Officer
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OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE OPTION IS EARNED ONLY
BY THE CONTINUATION OF EMPLOYMENT OF OPTIONEE AT THE WILL OF THE COMPANY (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING COMMON
SHARES HEREUNDER), UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR IN A SEVERANCE
AGREEMENT ENTERED INTO BETWEEN THE OPTIONEE AND THE COMPANY ON THE DATE HEREOF.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE GRANT OF THIS OPTION IS PROVIDED AS
ADDITIONAL CONSIDERATION FOR ENTERING INTO A CONFIDENTIALITY AND NON-DISCLOSURE
AGREEMENT ON BEHALF OF THE COMPANY. OPTIONEE ACKNOWLEDGES AND AGREES THAT
NOTHING IN THIS AGREEMENT, NOR IN THE PLAN WHICH IS INCORPORATED HEREIN BY
REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF
EMPLOYMENT BY THE COMPANY, A PARENT, A SUBSIDIARY OR AN AFFILIATE, NOR SHALL IT
INTERFERE IN ANY WAY WITH HIS OR HER RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
HIS OR HER EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and certain information
related thereto and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. Optionee has reviewed the Plan and this Option in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option and fully understands all provisions of the Option.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee upon any questions arising under the Plan.
Optionee further agrees to notify the Company upon any sale of the Common
Shares.
Optionee
------------------------------
Xxxx Xxxxxxx
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EXHIBIT C
NONCOMPETITION, CONFIDENTIALITY AND INVENTIONS AGREEMENT
I understand that:
A. As part of my employment with INFORMATION ADVANTAGE, INC. a Delaware
corporation, or one of its affiliates (the "Company"), I am expected to make new
contributions and inventions of value to the Company.
B. My employment creates a relationship of confidence and trust between me
and the Company with respect to any information of a confidential or secret
nature: (1) applicable to the business of the Company and its subsidiaries, and
(2) applicable to the business of any customer of the Company, which may be made
known to me by the Company or its subsidiaries or by any customer of the Company
or learned by me during the period of my employment (the "Proprietary
Information").
C. By way of illustration, not limitation, Proprietary Information
includes: (i) software licensed by the Company; (ii) trade secrets, processes,
formulae, data, know-how, improvements, inventions and techniques; (iii)
customer lists and related information; (iv) information concerning design,
construction, configuration, size, dimensions, programming, geometry, internal
mechanisms, internal working and internal functions of software; (v) cost or
expense of research, development, installation, developing, marketing, marketing
surveys or analyses; (vi) pricing or licensing, as well as other financial data
pertaining to any and all present and/or future developments, processes or
devices, or component parts thereof, relating to the Company's business; (vii)
business and strategic plans for the Company; (viii) financial forecasts, models
and projections for the Company; and (ix) all personnel information, including
without limitation employee lists or other information identifying Company
employees, contractors or applicants, personnel files, compensation information,
investigation files, medical records or discipline records.
Notwithstanding the foregoing, Proprietary Information does not
include proprietary data, information relating to the business or activities of
the Company, know-how and other like information set forth above which is (a) in
the public domain at the time of its use or disclosure by me; (b) already known
to me at the time it is first made known to me by the Company; or (c) required
to be disclosed by any official process, order, or other like demand as long as
the Company has been given prior notice of such order, process or demand
adequate to enable the Company to oppose the same.
D. In addition, because of my access to Proprietary Information of the
Company and its customers, including the employees of the Company and its
customers, (i) the Company desires that I agree to certain restrictions on
competition and solicitation of customers and employees of the Company, all as
contained herein, and (ii) I agree that such restrictions are reasonable.
In consideration of my employment, stock options granted in conjunction
herewith, and the compensation and severance payments received from time to
time, I hereby agree as follows:
1. CONFIDENTIALITY OBLIGATION. At all times, both during my employment and
after its termination, I will keep in confidence and trust the Proprietary
Information. I will not use such Proprietary Information other than in the
course of my work for the Company, nor disclose any of such Proprietary
Information or anything related thereto to any third party without the consent
of the Company.
2. OBLIGATIONS UPON TERMINATION. In the event of the termination of my
employment by me or by the Company for any reason, I will deliver to the Company
all documents and data of any nature pertaining to my work and I shall not take
with me any documents or data of any description or any reproduction of any
description containing or pertaining to any Proprietary Information.
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3. OBLIGATIONS REGARDING INVENTIONS. With respect to information,
inventories and discoveries, including improvements, developed, made or
conceived by me, either alone or with others, at any time, within or without
normal working hours, during my employment by the Company, arising out of such
employment, or pertinent to any field of business or research in which, during
such employment, the Company is engaged or (if such is known to or ascertainable
by me) is considering engaging, I agree:
(a) That all such information, inventions and discoveries, whether or
not patented or patentable, shall be and remain the sole property of the
Company.
(b) To disclose promptly to an authorized representative of the
Company all information, inventions and discoveries, and all information in my
possession as to possible applications thereof to industry and other uses
thereof or therefor.
(c) Not to file any patent applications or copyright registrations
relating to any such invention or discovery except with the prior consent of an
authorized representative of the Company.
(d) At the request of the Company, and without expense to me, to
execute such documents and perform such other acts as the Company deems
necessary to obtain patents or to register copyrights on such inventions and
discoveries in any jurisdiction or jurisdictions and to assign to the Company or
its designees such inventions and discoveries and any patent applications,
whether or not active, any patents relating thereto, and any copyrights therein.
4. EXCEPTIONS. My obligation to assign inventions to the Company does not
apply to an invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and was developed entirely on my own
time, and (a) which does not relate (1) to the business of the Company or (2) to
the Company's actual or demonstrable anticipated research or development, or (b)
which does not result from any work performed by me for the Company.
5. EXISTING INVENTIONS. As a matter of record, I attach hereto a complete
list of inventions which have been made or conceived or first reduced to
practice by me alone or jointly with others prior to my employment which I
desire to remove from the operation of this Agreement; and I covenant that such
list is complete. If no such list is attached to this agreement, I represent
that I have not made, conceived or reduced to practice any such inventions and
improvements at the time of signing this agreement.
6. PRESUMPTION REGARDING DATE OF INVENTION. If any application for any
United States or foreign patent related to or useful in the business of the
Company or its subsidiaries or any customer of the Company shall be filed by me
or for me during the period of one (1) year after the termination of my
employment, the subject matter covered thereby shall be presumed to have been
conceived during my employment with the Company.
7. OTHER CONFIDENTIALITY AGREEMENTS. I represent that my performance of all
the terms of this agreement, and as an employee of the Company, does not and
will not breach any agreement to keep in confidence proprietary information
acquired by me in confidence or in trust prior to my employment with the Company
and I agree not to enter into any agreement either written or oral in conflict
herewith.
8. RESTRICTION ON COMPETITION. I acknowledge that the Company needs to be
protected against the potential for unfair competition and impairment of the
Company's goodwill by my use of the Company's training, assistance, confidential
information and trade secrets in direct competition with the Company. I
therefore agree that during the term of my employment with the Company and for
the greater of (a) six months after the termination of my employment with cause
("cause" shall have the meaning set forth in the Severance Agreement between me
and the Company dated as of January 8, 1999) or my resignation without Good
Reason ("Good Reason" shall have the meaning set forth in the Severance
Agreement between me and the Company dated as of January 8, 1999) or (b) the
period of time that I am entitled to receive severance pay from the Company
after the termination of my employment (the "Noncompete Period"), I shall not,
directly or indirectly, operate, join, control, be employed by or participate in
ownership, management, operation or control of, or be connected in any manner as
an independent contractor, consultant or otherwise, with any person or
organization engaged in any business activity which is
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competitive with any business of the Company or any successor of the Company at
the termination of my employment within the states of the United States of
America. I expressly agree the provisions of this paragraph 8 shall survive the
expiration or the termination of this Agreement, whether such termination be
voluntary or involuntary or with or without cause.
I also agree that in addition, but not to the exclusion of any other
available remedy, the Company shall have the right to enforce the provisions of
this non-competition agreement by applying for and obtaining temporary and
permanent restraining orders or injunctions from a court of competent
jurisdiction without the necessity of filing a bond therefor. In any such court
action, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs from the other party.
9. COVENANT NOT TO SOLICIT CUSTOMERS. I shall not, during the Noncompete
Period, directly or indirectly, including through third party brokers or agents,
(i) solicit any software or software consulting business of any customer of the
Company who is a customer at the time of the termination of my employment or
during the one year period prior thereto; or (ii) cause or attempt to cause any
then existing or prospective customer, client or account to divert, terminate,
limit or in any manner modify or fail to enter into any actual or potential
business relationship with the Company.
10. COVENANT NOT TO RECRUIT EMPLOYEES. I recognize that the Company's work
force constitutes an important and vital aspect of its business. I agree that
during the term of my employment and for a period of two (2) years after the
termination of my employment for any reason whatsoever, I shall not, directly or
indirectly, solicit, or assist anyone else in the solicitation of, any of the
Company's then current employees to terminate their employment with the Company,
and to become employed by any business enterprise with which I may then be
associated or connected, whether as an owner, employee, partner, agent,
investor, consultant, contractor or otherwise.
11. GOVERNING LAW. This Agreement, and any disputes or issues related
thereto, shall be governed by the internal laws of the State of Minnesota.
12. VENUE. Any dispute related to or arising out of this Agreement shall be
resolved in the state or federal courts in Hennepin County, Minnesota.
13. SCOPE OF AGREEMENT. This Agreement supersedes any prior agreements
between the Company and me regarding the subject matter hereof. The terms of
this Agreement may only be amended or modified in a writing executed by the
Company and me.
14. EFFECTIVE DATE. This agreement shall be effective as of the date
hereof.
Dated as of: January 8, 1999 ------------------------------------
Xxxx Xxxxxxx
INFORMATION ADVANTAGE, INC.
By:
-------------------------------
Xxxxx X. Xxxx
Its: President and CEO
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