EXHIBIT 10.38
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of July 31,
2000, between Adaytum, Inc. (the "Company"), a Delaware corporation, and
Xxxxx Xxxxxxxx, (the "Employee"), a resident of Minnesota, provides as
follows:
WHEREAS, the Employee currently is employed by the Company;
WHEREAS, throughout her employment with the Company, the Employee has
made valuable contributions to the Company.
WHEREAS, prior to the date of this Agreement, the Company has been a
closely held, privately owned corporation,
WHEREAS, at some point in the future, the Company's ownership may
change, if the Company elects to convert from a privately held corporation to a
publicly held corporation;
WHEREAS, the Company wants to provide certain key employees of the
Company, including the Employee, with a higher level of job security than
otherwise might exist, given the potential ownership changes at the Company;
WHEREAS, the Company believes that providing certain key employees of
the Company, including the Employee, with a higher level of job security, will
redound to the benefit of the Company;
NOW, THEREFORE, the Company and the Employee, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
mutually agree and covenant as follows:
ARTICLE I. DEFINITIONS
The following terms shall have the meanings set forth below, unless the
context clearly requires otherwise. Where appropriate, additional terms are
defined elsewhere in this Agreement.
1.1 "Agreement" means this Employment Agreement, and any
amendments hereto (mutually agreed upon by the parties, and
set forth in writing).
1.2 "Base Salary" means the annual compensation payable to the
Employee, as set forth at Paragraph 4.1 of this Agreement, and
as modified periodically following the execution of this
Agreement.
1.3 "Associated Company" means any company other than Adaytum,
Inc. which is for the time being a subsidiary of the Adaytum
Group (Adaytum KPS Software Limited, Insight Systems ApS, ET
CETERA).
1.4 "Board" means the Board of Directors of the Company.
1.5 "Company" means Adaytum, Inc.
1.6 "Confidential Information" means information that is
proprietary to the Company or proprietary to others and
entrusted to the Company, whether or not trade secrets.
Confidential Information includes information proprietary to
the Company's clients, customers and business contacts, and
entrusted to the Company. Confidential Information includes,
but is not limited to, information relating to business plans
and to business as conducted or anticipated to be conducted,
and to past, current or anticipated products. Confidential
Information also includes, without limitation, information
concerning research, development, purchasing, accounting,
marketing, selling and services. All information that Employee
has a reasonable basis to consider confidential is
Confidential Information, whether or not originated by
Employee and without regard to the manner in which Employee
obtains access to this and any other proprietary information.
1.7 "Employee" means Xxxxx Xxxxxxxx.
1.8 "Plan" means any bonus or incentive compensation agreement,
plan, program, policy or arrangement sponsored, maintained or
contributed to by the Company, to which the Company is a party
or under which employees of the Company are covered,
including, without limitation, any stock option, restricted
stock or any other equity-based compensation plan, annual or
long-term incentive (bonus) plan, and any employee benefit
plan, such as a profit sharing, medical, dental, disability,
accident, life insurance, automobile allowance, perquisite,
fringe benefit, personal time off, severance or any other
agreement, plan, program, policy or arrangement intended to
benefit employees or executive officers of the Company.
1.9 "Inventions" means ideas, improvements and discoveries,
whether or not such are patentable or copyrightable, and
whether or not in writing or reduced to practice.
1.10 "Works of Authorship" means writings, drawings, software,
semiconductor mask works, and any other works of authorship,
whether or not such are copyrightable.
ARTICLE II. EMPLOYMENT, REPRESENTATIONS, DUTIES, AND OBLIGATIONS.
2.1 EMPLOYMENT: The Company continues to employ the Employee and
the Employee continues to work for the Company, subject to the
terms and conditions of this Agreement.
2.2 EMPLOYEE'S QUALIFICATIONS AND REPRESENTATIONS: The Employee
warrants and confirms, as a condition of this Agreement and
her employment with the Company, that the information
previously provided to the Company and contained in any
resume, CURRICULUM VITAE or other writing furnished by the
Employee, as well as in any oral representations made by the
Employee, regarding the Employee's qualifications (including,
but not limited to, educational background, degrees, job
history, ET CETERA) were truthful, accurate, and not
misleading. The Employee further warrants that she is free to
enter into and perform this Agreement and that by doing so the
Employee will not be in breach of any obligation to any third
party, including, but not limited to, any former employer of
Employee. The Employee further warrants that she has disclosed
to the Company any obligations to third parties, including,
but not limited to, any former employer of Employee which may
limit her ability to enter into and/or perform this Agreement,
and that she has sought and received independent legal advice
that she will not breach any such obligation by entering into
or performing this Agreement.
2.3 DUTIES: During her employment by the Company, Employee agrees
to devote reasonable attention and time during normal business
hours to the business and affairs of the Company, to the
extent necessary to discharge the responsibilities assigned to
Employee, and, to use Employee's best efforts to perform
faithfully and efficiently such responsibilities.
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During her employment with the Company, Employee shall:
(a) promptly and faithfully comply with all directions
given by the Company;
(b) provide to the Company such information relating to
its affairs as it may from time to time request; and,
(c) comply with the Company's policies and procedures;
provided, that to the extent such policies and
procedures are inconsistent with this Agreement, the
provisions of this Agreement shall control.
Further, during her employment with the Company, the Employee
shall not:
(d) directly or indirectly, be in any manner engaged,
concerned or interested in any other trade, business,
profession or occupation whatsoever, except with the
prior written consent of the Company's Chief
Executive Officer and subject to any terms and
conditions which the Chief Executive Officer imposes;
and,
(e) without the prior authority of the Chief Executive
Officer;
(i) commit the Company to any contract exceeding
$5,000;
(ii) pledge the credit of the company or grant
any security charge, lien or encumbrance
over any or all of its assets;
(iii) bind or purport to bind the Company in
guaranteeing or acting as surety for the
debt or liability of any other person;
(iv) cause the Company to enter into any
commitment, contract or arrangement
otherwise than in the normal course of
business or which is outside the scope of
her normal duties or which is of an unusual
onerous or long-term nature;
2.4 TRAVEL: Employee shall travel both nationally and
internationally as Employee's duties may reasonably demand,
but the Employee shall not be obliged to reside outside the
State of Minnesota, unless mutually agreed to by the Employee
and the Company.
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2.5 CERTAIN PROPRIETARY INFORMATION: If Employee possesses any
proprietary information of another person or entity as a
result of a prior employment or other relationship, Employee
shall honor any legal obligation that Employee has with that
person or entity with respect to such proprietary information.
Employee warrants that she has disclosed to the Company the
nature of any proprietary information in Employee's possession
as a result of prior employment, and that Employee has sought
and received independent legal advice that Employee will not
breach any legal obligation to refrain from disclosure or use
of such proprietary information by entering into or performing
this Agreement.
ARTICLE III. EMPLOYMENT AT WILL.
3.1 EMPLOYMENT AT WILL: The Company and the Employee understand
and agree that the Employee's employment with the Company
shall be "at will." The Company and the Employee understand
and agree that the phrase "at will" is intended to mean that
either the Company or the Employee may end their employment
relationship at any time, for any reason, with or without
cause, and with or without notice. The Company and the
Employee agree that this Agreement is not intended to be and
should not be construed as an employment contract that
determines or affects the duration of the Employee's
employment, or any other terms or conditions of the Employee's
employment, except for those specifically set forth herein.
ARTICLE IV. COMPENSATION, BENEFITS, EXPENSES.
4.1 BASE SALARY: During the term of Employee's employment under
this Agreement, the Company shall pay Employee a Base Salary
at an annual rate of Two Hundred and Ten Thousand and No /100
Dollars ($210,000.00), which is the equivalent of Seventeen
Thousand and Five Hundred and No/100 Dollars ($17,500.00) per
month, until such time that a higher annual rate is approved
by the Chief Executive Officer. Such Base Salary will be paid
in equal regular periodic payments in accordance with the
Company's regular payroll practices. If Employee's Base Salary
is increased from time to time during Employee's employment
under this Agreement, the increased amount shall become the
Base Salary for the remainder of Employee's employment under
this Agreement.
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4.2 BONUS: In addition to Employee's other remuneration hereunder,
the Employee may receive a bonus to be computed and paid by
the Company in accordance with the Schedule attached hereto as
Exhibit A. The Company may terminate any bonus scheme at any
time without replacing it with any other scheme or incentive;
further, the amount or nature of any bonus or scheme
determined by the Board for any period shall not be any
indication or requirement that any similar bonus or scheme
will be applicable to any subsequent period. If the Employee's
employment with the Company is terminated for any reason other
than cause, the Employee may be eligible for a pro rata bonus
corresponding to the number of months the Employee worked
during the calendar year the employment relationship ended.
The Company retains sole discretion to determine whether the
Employee shall receive such a bonus. The Company will have no
bonus obligation to the Employee following the calendar year
in which the Employee's employment ended.
4.3 BENEFIT PLANS: At the sole discretion of the Board, in
addition to Employee's other renumeration hereunder, the
Employee may be entitled to participate in such Plans as the
Board shall from time to time establish.
4.4 PERSONAL TIME OFF (PTO): The Company's PTO year runs from
January 1st to December 31st and the Employee may take
personal time off totaling twenty-five (25) working days in
each PTO year (in addition to public holidays). Personal time
off should be taken at such times convenient to the Company as
may be agreed between Employee and the Company and in
accordance with any policies as to personal time off from time
to time established by the Company.
(a) ACCRUAL: PTO entitlement will accrue from month to
month during each PTO year and the entitlement to
accrued PTO pay upon termination will be in
proportion to the period of employment during the
year. Upon termination, the Employee shall reimburse
the Company for PTO taken in excess of Employee's
accrued entitlement.
(b) NO CARRY-FORWARD: The Employee may not, without the
written consent of the Company, carry forward any
unused PTO entitlement to any subsequent year.
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(c) ILLNESS: If Employee is unable to perform Employee's
duties hereunder because of physical or mental
illness, bodily injury or disease, the Company will
deduct the days taken as absent from the total of PTO
days available for that PTO year.
4.5 BUSINESS EXPENSES: The Company shall reimburse the Employee
(in accordance with the relevant policies established by the
Company from time to time) for all travel, hotel and other
out-of-pocket expenses properly and reasonably incurred and
documented, exclusively for and in the course of performing
Employee's duties.
ARTICLE V. TERMINATION.
5.1 TERMINATION: As set forth in ARTICLE III above, the employment
relationship between the Company and Employee is at will.
Thus, the Company or the Employee may terminate their
employment relationship at any time, with or without notice,
for any reason or no reason, whether with or without cause. As
set forth elsewhere in this Agreement, depending on the
circumstances of the termination of employment, the
termination may not relieve the parties of some of their
contractual obligations to each other. The question of whether
specific obligations survive the termination of the employment
relationship is addressed elsewhere in this Agreement.
5.2 TERMINATION IN THE EVENT OF DEATH: The Company's obligations
to the Employee pursuant to this Agreement shall terminate in
the event of the Employee's death. Nothing in this Paragraph,
however, shall supercede any obligations the Company may owe
to the Employee's estate and/or family members, as
specifically set forth in any of the health, benefit or
insurance plans or programs in which the Employee is enrolled
at the time of his death. Any vested options due to the
Employee shall survive the Employee's death.
5.3 TERMINATION IN THE EVENT OF DISABILITY: The Company's
obligations to the Employee pursuant to this Agreement shall
terminate if the Employee becomes disabled. As used in this
Paragraph, "disabled" means that the Employee cannot perform
the essential functions of the job, with or without a
reasonable accommodation. Obligations that survive disability
pursuant to Company policies, including the Stock Option Plan
and other applicable policies, should continue after
disability.
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5.3.1 "DISABILITY" DEFINED: As used in this Agreement,
"disability" or "disabled" means that the Employee
has a mental or physical condition that renders him
unable to perform the essential functions of his job,
with or without reasonable accommodation, during
ninety (90) or more days within any one hundred and
eighty (180) day period.
5.4 TERMINATION FOR CAUSE: The Company's obligations to the
Employee pursuant to this Agreement shall terminate if the
Board of Directors, or the Company's Chief Executive Officer,
elects to terminate this Agreement for "cause" and notifies
the Employee in writing of that decision. A termination for
"cause" will affect the severance benefits for which the
Employee otherwise may have been eligible, as set forth
further below.
5.4.1 "CAUSE" DEFINED: As used in this Agreement, the word
"cause" means the following:
(i) The Employee has engaged in willful and/or
material misconduct, including, but not
limited to, willful and material failure to
perform the Employee's duties and
responsibilities as an officer or employee
of the Company;
(ii) The Employee has committed fraud,
misappropriation or embezzlement, in
connection with the Company's business,
committed an act (or acts) of personal
dishonesty relevant to the duties and
responsibilities of the Employee, or
committed any willful and deliberate
misconduct that is materially and/or
demonstrably injurious to the Company;
(iii) The Employee has been convicted of or has
pleaded NOLO CONTENDERE to criminal
misconduct (exclusive of misdemeanor
offenses);
(iv) The Employee has breached his obligations to
the Company as set forth in this Agreement;
and,
(v) The Employee has failed to perform his
duties to the reasonable satisfaction of the
Employee and the Chief
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Executive Officer of the Company and/or the
Board of Directors.
5.5 TERMINATION WITHOUT CAUSE: The Company's obligations to the
Employee pursuant to this Agreement shall terminate if the
Board of Directors, or the Company's Chief Executive Officer,
elects to terminate this Agreement without "cause" and
notifies the Employee in writing of that decision. A
termination without "cause" will NOT affect the severance
benefits for which the Employee otherwise is eligible, as set
forth further below.
5.6 TERMINATION AS A RESULT OF A CHANGE IN CONTROL: If a Change in
Control shall occur and (a) if, following the change in
control, the Employee is terminated by the Company pursuant to
Paragraphs 5.3 or 5.5 above; or, (b) if, following the change
in control, resulting in the Employee voluntarily terminating
her employment relationship within six (6) months of the
change in control, the Employee will be eligible for the
severance benefits set forth below.
5.6.1 "CHANGE IN CONTROL" DEFINED: A "change in control"
occurs at the time of closing and shall mean any of
the following:
(i) a sale of all or substantially all of the
assets of the Company;
(ii) the acquisition of the securities of the
Company, representing more than fifty (50)
percent of the combined voting power of the
Company's then outstanding securities by any
person or group of persons;
(iii) a consolidation or merger of the Company in
which the Company is not the continuing or
surviving corporation or pursuant to which
shares of the Company's outstanding capital
stock are converted into cash, securities or
other property, other than a consolidation
or merger of the Company in which Company
shareholders immediately prior to the
consolidation or merger have the same
proportionate ownership of voting capital
stock of the surviving corporation
immediately after the consolidation or
merger;
(iv) in the event that the shares of the voting
capital stock of the Company are traded on
an established securities market: a
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public announcement that any person has
acquired or has the right to acquire
beneficial ownership of securities of the
Company representing more than fifty (50)
percent of the combined voting power of the
Company's then outstanding securities, and
for this purpose the terms "person" and
"beneficial ownership" shall have the
meanings provided in Section 13(d) of the
Securities and Exchange Act of 1934, as
amended, or the commencement of or public
announcement of an intention to make a
tender offer or exchange offer for
securities of the Company representing more
than fifty (50) percent of the combined
voting power of the Company's then
outstanding securities; and,
(v) the Board of Directors of the Company, in
its sole discretion, determines that there
has been a sufficient change in the share
ownership of the Company to constitute a
change of effective ownership or control of
the Company.
5.7 TERMINATION BY THE EMPLOYEE: The Company's obligations to the
Employee pursuant to this Agreement shall terminate if the
Employee elects to terminate this Agreement and notifies the
Company in writing of such election. A termination decision by
the Employee will affect the severance benefits for which the
Employee otherwise may have been eligible, as set forth
further below.
5.8 SUMMARY: If this Agreement is terminated pursuant to
Paragraphs 5.2, 5.4 or 5.7, all of the Company's obligations
to the Employee shall cease immediately, unless otherwise
mutually agreed to, in writing, by the Company and the
Employee, or unless as required by applicable law. If this
Agreement is terminated pursuant to Paragraphs 5.3, 5.5 or
5.6, the Company's obligations to the Employee, with the
exception of the severance benefits set forth below, shall
cease thirty (30) days after the Employee becomes disabled, is
terminated without cause, or the employment relationship ends
due to a change in control or material change in job duties
and responsibilities, or unless as required by applicable law.
ARTICLE VI. SEVERANCE COMPENSATION AND BENEFITS.
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6.1 TERMINATION WITHOUT CAUSE: Subject to the qualifications of
Paragraphs 6.4 and 6.5 below, if the Company terminates this
Agreement without cause, the Employee shall be entitled to
receive one (1) year of her base salary and benefits
(exclusive of any stock options). For each additional
twelve-month period the Employee works subsequent to the
execution of this Agreement, the Employee shall be entitled to
an additional month of severance compensation and benefits,
provided however, that the maximum period for which the
Employee may receive severance compensation and benefits shall
not exceed thirty-six (36) months.
6.2 TERMINATION AS A RESULT OF A CHANGE IN CONTROL: Subject to the
qualifications of Paragraphs 6.4 and 6.5 below, if the
Employee terminates this Agreement pursuant to the provisions
of Paragraph 5.6 above, she shall be entitled to the same
severance benefits described in Paragraph 6.1 above. In
addition, all outstanding share options shall vest
immediately.
6.3 TERMINATION DUE TO DISABILITY: Subject to the qualifications
of Paragraphs 6.4 and 6.5 below, if the Company terminates
this Agreement because the Employee has become disabled, as
set forth in Paragraph 5.3 above, the Employee shall be
entitled to severance compensation and benefits for a period
of one (1) year, subject to the following limitation. The
Employee will be obligated to seek whatever benefits are
available under the Company's short- and/or long-term
disability plans. Assuming the Employee qualifies for either
short- or long-term disability payments, his severance
compensation will be reduced by the amount of the benefits he
is receiving from the Company's short- and/or long-term
disability plans.
6.4 FORFEITURE OF SEVERANCE BENEFITS: Regardless of the reason why
the employment relationship ends, if following termination,
the Employee breaches his obligations to the Company pursuant
to ARTICLES VII and VIII below, the Company's obligations to
provide the Employee severance compensation and benefits shall
cease immediately.
6.5 RELEASE OF CLAIMS: If the Employee wishes to qualify for the
severance compensation and benefits set forth in this ARTICLE
(and as described in Paragraphs 6.1 - 6.3), the Employee must
execute a general release of all claims. The general release
will be prepared by counsel for the Company and will relate to
all potential claims preceding the execution of the general
release. The general release will comply with all statutory
requirements
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governing releases. Unless a general release is executed by
the Employee, he shall not be eligible for severance
compensation and benefits.
6.6 TERMINATION FOR CAUSE: If the Company terminates this
Agreement for cause, the Employee shall not be entitled to
receive any severance compensation and benefits.
6.7 TERMINATION BY EMPLOYEE: If the Employee elects to terminate
this Agreement for any reasons other than those set forth
above in Paragraph 5.6, the Employee shall not be entitled to
receive any severance compensation and benefits.
6.8 TERMINATION FOR ANY OTHER REASON: If this Agreement is
terminated by the Employer or Employee for any reasons other
than those set forth in ARTICLE V above, the Employee shall
not be entitled to receive any severance compensation and
benefits.
6.9 NON-MONETARY BENEFITS: If the Company is obligated to provide
severance benefits pursuant to this Agreement, the Company, in
its sole discretion, either shall provide the Employee a
monetary benefit on a monthly basis that will enable the
Employee to obtain independently an equivalent benefit to that
provided by the Company's plan, or will pay directly the
Employee's COBRA payment for the period the Employee is
eligible for the benefit. The Company's obligation pursuant to
this Paragraph, however, shall cease if and when the Employee
obtains alternative employment and receives a comparable
benefit from his subsequent employer, or when the benefit
period set forth in this Agreement ends, whichever occurs
sooner. The Employee agrees that she will notify the Company
within seven (7) days of receiving comparable benefits from
another employer and that if he fails to do so, he will be
obligated to refund the value of any benefits provided by the
Company corresponding to the period when the benefits
overlapped.
ARTICLE VII. CONFIDENTIAL INFORMATION
7.1 CONFIDENTIALITY: The Employee agrees with the Company, and (as
separate obligations) with each of the Associated Companies to
which Employee's duties relate, that Employee will (both
during the continuance of the Agreement and after termination,
without limit of time):
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(a) not disclose, divulge or communicate to any person
(save to those officials of the Company or Associated
Companies whose proper province it is to know the
same or with the written consent of the Board or if
ordered so to do by a court of a competent
jurisdiction) any secret, private or confidential
information whatsoever of the Company or Associated
Companies or of any customer or client of the Company
or Associated Companies including without limitation
their operations, finance, business, products,
processes, techniques, know-how, customers, clients,
plans or other affairs whatsoever which is acquired
by the Employee in the course of his employment with
the Company or Associated Companies (whether or not
under this Agreement) or which would not have been
acquired but for such employment;
(b) do everything reasonably within Employee's power to
keep such information secret and confidential and to
avoid disclosure to persons not entitled to the same;
(c) not use any such information for Employee's own
benefit or for the benefit of any person or persons
or in a manner which would or might be detrimental to
the Company or Associated Companies;
(d) sign such confidentiality agreements in favor of the
Company or Associated Companies or any other person
as the Company may reasonably request and will
observe all such agreements and all other
restrictions and obligations upon or of the Company
or Associated Companies known to Employee for the
time being in relation to any confidential material
received from any third party.
ARTICLE VIII. NON-COMPETITION AND NON-SOLICITATION
8.1 NON-COMPETITION: Employee agrees that during the term of this
Agreement and for a period of one year following termination
of employment for any reason, Employee will not directly or
indirectly, alone or as a partner, officer, director,
shareholder or employee of any other firm or entity, engage in
any commercial activity in the U.S. in competition with any
part of the Company's business as conducted during the term of
this Agreement or as of the date of such termination of
employment or with any part of the Company's contemplated
business with respect to which Employee has
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private, secret, or Confidential Information as governed by
ARTICLE VII. For purposes of this clause, "shareholder" shall
not include beneficial ownership of less than five percent
(5%) of the combined voting power of all issued and
outstanding voting securities of a publicly held corporation
whose stock is traded on an acknowledged stock exchange.
8.2 NON-SOLICITATION OF EMPLOYEES: Employee recognizes that the
Company's workforce constitutes an important and vital aspect
of its business on a world-wide basis. Employee agrees that
for a period of two (2) years following the termination of
this Agreement for any reason whatsoever, Employee shall not
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 the Employee may then be
associated, affiliated or connected.
8.3 NON-SOLICITATION OF CLIENTS: For one (1) year following
termination of employment, Employee shall not use his
knowledge of the business requirements of, or canvas, or by
any other means seek or solicit business or orders from any
person or entity who is or has been at any time during the
twelve (12) months preceding the Employee's termination, a
client or customer of the Company or Associated Companies.
8.4 POST-EMPLOYMENT OBLIGATIONS: Following termination, the
Employee will not directly or indirectly:
(a) represent himself or permit himself to be represented
as being connected with or successor to the Company
or Associated Companies or their respective
businesses or as acting on behalf of any of them;
(b) represent, promote, advertise or refer to his
previous connection with the Company or Associated
Companies in such a way as to seek to utilize any
goodwill of any of the Companies; this provision will
not preclude the Employee from referring to his
previous connection with the Companies on any
CURRICULUM VITAE or application of employment;
(c) carry on, cause or permit to be carried on any
business under or using any name, style, logo or
image which is, has been or might be used by the
Company or Associated Companies which is
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calculated to cause confusion with such a name,
style, logo or image or infer a connection with any
of the Companies.
8.5 CONSIDERATION: The Employee expressly agrees that there is
good and sufficient consideration for the promises set forth
in this Agreement.
ARTICLE IX. INTELLECTUAL PROPERTY
9.1 ACKNOWLEDGMENT: The Employee acknowledges that her duties
include the making of inventions, discoveries, and
improvements and Employee accordingly hereby acknowledges and
agrees that all rights of any kind in respect of every
invention, discovery, creation or improvement of any product,
process, formula, know-how technique, expertise, method,
design or similar matter or in respect of any works of
authorship, writings, drawings, computer programs, or similar
tangible or non-tangible manifestation of knowledge of any
kind which relate to or concern the business of the Company or
Associated Companies in any way made or conceived by her alone
or jointly during the term of this Agreement whether or not
made during the course of her employment hereunder shall
belong to the Company.
9.2 ASSIGNMENT: The Employee hereby assigns to the Company all (if
any) interest which he may from time to time have in such
rights and agrees that the Company shall be exclusively
entitled to apply for patents or any other protection
whatsoever therefore.
9.3 DISCLOSURE: The Employee shall disclose to the Company in
writing any matter before referred to as soon as Employee is
able together with all information concerning the same which
the Company may request or which may be relevant and Employee
hereby irrevocably appoints the Company as Employee's attorney
to act for Employee and in Employee's name in the preparation
and execution of any necessary documents and to prosecute any
application in connection with matters covered by this clause
including power for the Company and persons nominated by it to
designate any other person to act as attorney in such
respects.
9.4 FURTHER ASSURANCE: Notwithstanding such power of attorney, the
Employee shall at the expense of the Company do, execute and
sign all such things, deeds, and documents as the Company may
consider desirable in
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connection with any such works of authorship, invention,
discovery, creation or improvement of any kind.
9.5 NOTICE: Minnesota law exempts from this Agreement "an
invention for which no equipment, supplies, facility or trade
secret information of the employer was used and which was
developed entirely on the Employee's own time, and (1) which
does not relate (a) directly to the business of the employer
or (b) to the employer's actual or demonstrably anticipated
research or development, or (2) which does not result from any
work performed by the Employee for the employer."
ARTICLE X. GENERAL PROVISIONS.
10.1 SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon
and inure to the benefit of the Company, its successors and
assigns, and to the Employee's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
10.2 DISPUTES: Any dispute, controversy or claim for damages or
other relief arising under or in connection with this
Agreement shall, in the Company's sole discretion, be settled
through arbitration or judicial proceeding. If the Company
elects to use arbitration, the arbitration shall be in
Minneapolis, Minnesota, and shall be conducted by a panel of
three (3) arbitrators in accordance with the rules of the
American Arbitration Association then in effect. Judgment may
be entered on the arbitrators' award in any court of competent
jurisdiction.
10.3 REASONABLENESS OF RESTRICTIVE COVENANTS: Employee and the
Company hereby stipulate that the prohibitions contained in
ARTICLES VII, VIII AND IX of this Agreement are reasonable,
and each specifically waives any objection to the
reasonableness of said prohibitions.
10.4 SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF: In addition to any
other relief afforded by law, the Company shall have the right
to enforce the provisions of ARTICLES VII and VIII of this
Agreement by specific performance and by injunctive relief
against Employee and any other persons concerned thereby.
Damages, specific performance and injunctive relief shall not
be considered as alternative remedies. If the Company is
successful in any action for enforcement of any provisions of
said ARTICLES, the costs and
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damages incurred by the Company related thereto, including
reasonable attorneys' fees and expenses, shall be paid by
Employee.
10.5 OFFSETS: Any amount payable to Employee pursuant to this
Agreement may be reduced for purposes of offsetting, either
directly or indirectly, any indebtedness or liability of
Employee to the Company.
10.6 NOTICES: Any notice hereunder shall be in writing and shall be
properly served on the Employee if served upon him personally
or if left at or sent by certified mail addressed to him at
his address stated above or to any other address known to the
Company as then being his residence, and on the Company if
sent by certified mail to its registered office.
10.7 PREVIOUS AGREEMENTS: This Agreement operates as from the date
of execution by the Employee and Company (whichever is later,
if the dates are different) in substitution for and to the
exclusion of any Employment Agreement previously in force
between the Company and/or Associated Companies, and Employee.
10.8 WITHHOLDING: To the extent required by any applicable law,
including, without limitation, any federal or state income tax
or excise tax law or laws, the Federal Unemployment Tax Act or
any comparable federal, state or local laws, the Company
retains the right to withhold such portion of any amount or
amounts payable to Employee under this Agreement as the
Company (on the written advice of outside counsel) deems
necessary.
10.9 CAPTIONS: The various headings or captions in this Agreement
are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
10.10 GOVERNING LAW: The validity, interpretation, construction,
performance, enforcement, and remedies of or relating to this
Agreement, and the rights and obligations of the parties
hereunder, shall be governed by the substantive laws of the
State of Minnesota, each of the parties hereby consenting to
the exclusive jurisdiction of said courts for this purpose.
10.11 CONSTRUCTION: Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to
the extent
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of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of
this Agreement.
10.12 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 right
or remedy granted hereby or by any related document or by law.
10.13 MODIFICATION: This Agreement may not be modified or amended
except by written instrument signed by the parties hereto.
10.14 ENTIRE AGREEMENT: This Agreement constitutes the entire
agreement and understanding between the parties hereto in
reference to all the matters herein agreed upon.
10.15 COUNTERPARTS: This agreement may be executed in one (1) or
more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one (1) and
the same instrument.
10.16 SURVIVAL: The parties expressly acknowledge and agree that the
provisions of this Agreement which by their express or implied
terms extend beyond the termination of employment hereunder,
or beyond the termination of this Agreement (including the
provisions of ARTICLES VII, VIII AND IX) shall continue in
full force and effect notwithstanding termination of
Employee's employment hereunder or the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed and delivered as of the date below.
EMPLOYEE COMPANY
-------- -------
ADAYTUM, INC., a Delaware corporation
/s/ X.X. Xxxxxxxx By: /s/ Xxxxx Xxxxx
---------------------------- --------------------------------
Xxxxx Xxxxxxxx Title: VP Human Resources
-------------------------------
Address: Address:
0000 Xxxxxx Xxxx Xxxxx 000
Xxxxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Dated: July 20, 2000 Dated: July 20, 2000
-- --
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EXHIBIT A
XXXXX XXXXXXXX
ANNUAL BONUS POTENTIAL: $100,000
QUARTERLY BONUS POTENTIAL: $25,000
QUARTERLY OBJECTIVES WILL BE ESTABLISHED THE BEGINNING OF EACH FISCAL QUARTER.
ACTUAL BONUS PAYMENT WILL BE A BASED ON ACHIEVEMENT AGAINST OBJECTIVES.
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