Exhibit 10.22
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of January 1, 1997 (the
"Agreement"), by and between SPSS Inc., a Delaware corporation ("SPSS"), and
Xxxxxx X. Xxx Consulting L.L.C., an Illinois Limited Liability Company, (the
"Consultant").
W I T N E S S E T H:
WHEREAS, Consultant previously served as an employee of SPSS
and currently has expertise in the areas of software development and marketing;
and
WHEREAS, SPSS desires Consultants services and Consultant is
desirous to enter into this consulting agreement on the terms and conditions
provided herein.
NOW, THEREFORE, in consideration of the premises, the
representations, warranties, covenants and agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
CONSULTING AGREEMENT
1.1 Consultancy. Subject to the terms and conditions of this
Agreement, SPSS agrees to retain Consultant, and Consultant agrees to provide
consulting services as a consultant to SPSS, for a term of one year (1) year
commencing on the date hereof. Such consultancy period shall be automatically
extended for additional one year terms unless either
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SPSS or Consultant give the other party written notice within thirty (30) days
prior to the end of the term of this agreement.
1.2 Consulting Services. During the term of this Agreement,
Consultant agrees to make himself available to SPSS and to provide up to thirty
(30) hours per month of consulting services as a consultant to SPSS and to
provide such expertise and consulting services on various matters relating to
the business of SPSS as SPSS may reasonably require, including, but not limited
to, product development and marketing to the academic marketplace.
1.3 Compensation. Subject to the terms and conditions of this
Agreement, and in consideration of the Consultant's agreement to provide
consulting services as described herein, SPSS shall pay to Consultant an amount
of $80,800 per annum, payable monthly in arrears. The Consultant shall pay or
cause to be paid all self-employment and other such taxes required by law,
including without limitation, all applicable social security, state unemployment
insurance and federal employment insurance taxes.
1.4 Termination. SPSS may terminate Article I of this
Agreement for Cause (as defined herein). If Article I of this Agreement is
terminated for Cause, SPSS shall pay the Consultant all accrued but unpaid
compensation under Section 1.3 hereof to the date of termination and shall have
no further obligations under Section 1.3 hereof. For purposes of this Agreement,
"Cause" shall mean one of the following events: (i) an act or failure to act by
the Consultant which constitutes recklessness or willful misconduct and which
results in a material injury to the business or SPSS; or (ii) an
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act or failure to act by the Consultant which constitutes a material breach of
this Agreement.
1.5 Expenses. In addition to the compensation payable under
Section 1.4 hereof, with the advance approval of the Chief Executive Officer,
Consultant shall be entitled to reimbursement for his reasonable out-of-pocket
expenses incurred in performing requested services under this Agreement. In the
event SPSS desires Consultant to travel in connection with the services provided
under this Agreement, SPSS shall reimburse Consultant for any such travel
expenses incurred on the same basis as the Chief Executive Officer of SPSS.
ARTICLE II
GENERAL TERMS
2.1 Relationship Between the Parties. The relationship of
Consultant acting in his capacity as a consultant pursuant to Article I hereof,
to SPSS hereunder is, and shall remain, that of an independent contractor.
Nothing in this Agreement shall be deemed to constitute an employee/employer,
partnership or fiduciary relationship between the parties. Except as
specifically provided herein, nothing in this Agreement shall be deemed to
constitute either party as the agent of the other, nor shall either party have
the right to bind the other party or make any promises or representations on
behalf of the other.
2.2 Confidential Information. The Consultant shall not at any
time during or for a period of five after the expiration or termination of this
Agreement, except pursuant to an order of any court of competent jurisdiction,
administrative agency or other
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governmental entity having authority to so require, and except for the purposes
of any tax return and/or report required to be made to any taxing authority,
directly or indirectly, divulge, furnish, or cause to be divulged or furnished
to any individual or entity, other than SPSS or any employee of SPSS, or make
any use for his own benefit, or for the benefit of any person, firm, corporation
or other entity, other than SPSS or an affiliate thereof, any secret or
confidential information of SPSS, including but not limited to, the names of
customers, customer information, financial information, technical information,
supplier information, details or information concerning contracts, trade
secrets, marketing information, or any other data, information or proprietary
information of or relating to the Business, SPSS or any affiliate thereof, or
their respective products or services, to the extent not generally known within
the trade or not a matter of public knowledge and which was acquired by the
Consultant during his employment with SPSS or obtained in connection with his
duties hereunder during the term of this Agreement.
2.3 Non-Competition. The Consultant hereby covenants and
agrees that, for the period of the consultancy and for a period of one year
thereafter, the Consultant shall not (i) directly or indirectly (whether through
a partnership of which the Consultant is a partner or through any other
individual or entity in which the Consultant has any interest, legal or
equitable), engage in any business competitive with the business of SPSS or its
subsidiaries and affiliates, (ii) directly or indirectly (whether through a
partnership of which the Consultant is a partner or through any other individual
or entity in which the Consultant has any interest, legal or equitable), solicit
or otherwise engage with (except pursuant to the Consultant's consultancy with
SPSS) any customers or clients of SPSS or its subsidiaries or
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affiliates, in any transactions which are in direct competition with the
business of SPSS or its subsidiaries or affiliates, or (iii) directly or
indirectly (whether through a partnership of which the Consultant is a partner
or through any other individual or entity in which the Consultant has any
interest, legal or equitable), assist any person in the development,
programming, servicing, maintenance, manufacture, sale, licensing, distribution
or marketing (including, without limitation, giving away software) of software
and related products in competition with SPSS or any of its affiliates'
products, in each case in the United States of America or any country where SPSS
or its subsidiaries or affiliates are doing business, excluding passive
investment interests of less than two percent (2%) in corporations whose stock
is registered under the Securities Exchange Act of 1934, as amended.
ARTICLE III
MISCELLANEOUS
3.1 Equitable Relief. The Consultant understands that a breach
by it of any provision of this Agreement may cause substantial injury to SPSS
which may be irreparable and/or in amounts difficult or impossible to ascertain,
and that in the event the Consultant breaches any provision of this Agreement,
SPSS shall have, in addition to all other remedies available in the event of a
breach of this Agreement, the right to injunctive or other equitable relief.
Further, the Consultant acknowledges and agrees that the restrictions and
commitments set forth in this Agreement are necessary to protect SPSS's
legitimate interests and are reasonable in scope, area and time, and that if,
despite this acknowledgment and agreement, at the time of the enforcement of any
provision of this Agreement a court of
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competent jurisdiction shall hold that the period or scope of such provision is
unreasonable under the circumstances then existing, the maximum reasonable
period or scope under such circumstances shall be substituted for the period or
scope stated in such provision.
3.2 Notices. Any notice, request, instruction or other
document to be given hereunder by one party hereto to the other party hereto
shall be in writing and delivered personally (effective upon delivery), sent by
overnight courier freight prepaid (effective one day after delivery to such
courier during its regular business hours), sent by registered or certified
mail, postage prepaid (effective 5 days after deposit in the U.S. Mail) or sent
by facsimile transmission (effective upon confirmation of receipt),
if to Consultant to:
Xxxxxx X. Xxx Consulting
000 Xxxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Facsimile number: (000) 000-0000
if to SPSS to: SPSS Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
---------
Facsimile number: (000) 000-0000
with a copy to: Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
---------
Facsimile number: (000) 000-0000
or to such other address as shall be provided to the other persons named herein
pursuant to notice given pursuant to the provisions of this Section 3.2.
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3.3 Arbitration. Any dispute as to termination for Cause under
Section 1.5 hereof shall be settled by arbitration in the City of Chicago,
Illinois by three arbitrators, one of whom shall be appointed by Consultant, one
of whom shall be appointed by SPSS and the third of whom shall be appointed by
the first two arbitrators. If either party fails to appoint an arbitrator within
20 days of a request in writing by the other party to do so, or if the first two
arbitrators cannot agree on the appointment of a third arbitrator within 20 days
of their designation, then such arbitrator shall be appointed by the Chief Judge
of the United States District Court for the Northern District of Illinois.
Except as to the selection of arbitrators which shall be as set forth above, the
arbitration shall be conducted promptly and expeditiously in accordance with the
commercial arbitration rules of the American Arbitration Association so as to
enable the arbitrators to render an award within 90 days of the commencement of
the arbitration proceedings. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Consultant, on the one
hand, and SPSS, on the other hand, shall each bear one-half of the expenses of
the arbitration; except that, in the case where the parties are unable to agree
on a single arbitrator, each party shall bear the expenses of the arbitrator it
selects.
3.4 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties,
except by operation of law and except that SPSS may assign its rights and
obligations under this Agreement to any affiliate of SPSS. If such assignment
shall be made by SPSS, such affiliate shall be entitled to all of the rights and
shall assume all of the obligations of SPSS hereunder, provided, that SPSS shall
remain liable for the performance of such affiliate's obligations hereunder.
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3.5 Effect and Benefit. This Agreement shall be binding upon
and inure to the benefit of the heirs and personal representatives of the
Consultant and to the successors and assigns of SPSS.
3.6 Governing Law. The validity, interpretation and
performance of this Agreement shall be governed and construed in all respects in
accordance with the internal substantive laws of the State of Illinois, without
regard to its conflicts of law principles.
3.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same agreement.
3.8 Severability. The provisions of this Agreement shall be
severable, and the invalidity of any one or more of such provisions shall not
affect the validity of any of the other provisions hereof.
3.9 Amendment and Modification. No amendment, modification or
alteration, nor any waiver, of the terms and conditions of this Agreement shall
be binding unless the same shall be in writing and duly executed by the parties
hereto.
3.10 Waiver of Breach. The waiver by one party of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach of the same or any other
provision of this Agreement by that party.
3.11 Expenses. Except as otherwise provided, the Consultant
and SPSS shall each pay all costs and expenses incurred by him or it or on his
or its behalf in connection with this Agreement and the transactions
contemplated hereby, including, without limiting the
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generality of the foregoing, fees and expenses of its own financial consultants,
accountants and counsel.
IN WITNESS WHEREOF, each of the parties has caused this
Consulting Agreement to be duly executed and delivered as of the day and year
first above written.
SPSS INC.
By: /s/ Xxxxxx Hamburg
--------------------------
Its: Executive Vice President, Corporate Operations
and Chief Financial Officer and Secretary
XXXXXX X. XXX CONSULTING, L.L.C.
/s/ Xxxxxx X. Xxx
-----------------
By: Xxxxxx X. Xxx
Its: President
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