Exhibit 10.46
Employment Agreement
Agreement made as of the 19 day of January, 1998 (the "Effective
Date"), by and between Peritus Software Services, Inc., a Massachusetts
corporation (the "Company"), and Xxxxxx X. Xxxx (the "Employee").
The Company wishes to employ the Employee, and the Employee wishes to
be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
I. Titles and Reporting Responsibilities
-------------------------------------
The Employee's title will be Vice President and General Manager,
Outsourcing Services or such other title as may be mutually agreed upon between
Employee and the Company. The Employee will report to the CEO. The Employee will
be located in the Company's offices in the greater Denver, Colorado metropolitan
area.
II. Term of Employment
------------------
The Company hereby agrees to employ the Employee and the Employee
hereby accepts employment with the Company for a period (the "Employment
Period") commencing on the Effective Date and ending upon termination of
Employee's employment pursuant to the provisions of Section VII below. This
Agreement shall remain in full force and effect until expiration hereof unless
and until earlier terminated in accordance with Section VII of this Agreement.
III. Responsibilities of the Employee
--------------------------------
The Employee agrees to undertake the duties and responsibilities
inherent in the position described in Section I above and such other duties and
responsibilities as the Company or its designee shall from time to time
reasonably assign in good faith and in a manner as is reasonable for a person in
Employee's position. The Employee agrees to devote his entire business time,
attention and energies to the business and interests of the Company during the
term of this Agreement. The Employee agrees to abide by the rules, regulations,
instructions, personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the Company.
IV. Expense Reimbursement
---------------------
The Company will reimburse the Employee for all reasonable documented
travel and other business expenses including lodging when working at the
Company's headquarters in Billerica, Massachusetts incurred in furthering the
business of the Company and in accordance
1
with the Company's then current travel and business expense policy. Expenditures
of an extraordinary nature shall require prior written approval of the Company.
V. Prohibitions
------------
During the term of this Agreement, the Employee shall not:
(a) be employed by or otherwise represent any other company, product,
service or enterprise, without the prior written approval of the
Company; or
(b) make any representation, warranty, guarantee, or statement, orally
or in writing, which would contravene any Company policy or compromise
the Company's interests.
VI. Compensation
------------
(a) The Employee shall be paid a base salary (the "Base Salary") and,
when appropriate, bonuses ("Bonus Compensation") as described in this
Section VI. The Employee's bi-weekly Base Salary shall be $8,653.85,
which is the equivalent of $225,000 per year. Provided neither party
has exercised the right to terminate this Agreement under Section VII,
performance and compensation reviews will be conducted annually
beginning January 1, 1999.
(b) Bonus Compensation may be paid from time to time to the Employee as
approved by the Board of Directors of the Company, by a Committee of
the Board of Directors of the Company established for the purpose of
determining bonus compensation or by a designee of the Board of
Directors or such Committee who has been granted the authority to
determine bonuses. In addition, the Company shall pay Employee a bonus
of $15,000 in 1998 and 1999 within 60 days of the end of such years.
(c) Except as otherwise provided, the Employee shall be entitled to
participate in any and all benefit programs that the Company
establishes and makes generally available to its employees for which he
may be eligible under plan documents and applicable laws. In any case
where contributions or benefits related to participation in a plan vary
on the basis of compensation, "compensation" shall mean Employee's Base
Salary only and shall not include expense reimbursements, advances,
Bonus Compensation or any other compensation which may be paid by the
Company. The Employee shall be entitled to vacation in accordance with
the Company's then current policy, to be taken at such times as may be
approved by the CEO.
(d) Any future revisions to Base Salary or Bonus Compensation may be
implemented by the Board of Directors of the Company, by a Committee of
the Board of Directors of the Company established for the purpose of
determining bonus compensation or by a designee of the Board of
Directors or such Committee who has been granted the authority to
determine bonuses. In no event shall Employee's Base Salary be less
than the amount set forth in paragraph(a) above.
2
VII. Termination
-----------
The employment of the Employee by the Company pursuant to this
Agreement shall terminate:
(a) By the Employee, without cause, by giving 15 days' prior written
notice of termination to the Company or within such shorter period as
is established by mutual agreement of the parties or upon Employee's
commencement of employment or consulting with a third party, or by the
Company, without cause, upon at least 52 weeks prior written notice
(the "Notice Period") of termination to the Employee, subject to the
provisions of Section VIII (b) below.
(b) By either party, if the other party breaches any of its obligations
under this Agreement and fails to remedy such breach within 30 days
after written notice of such breach is provided to such other party;
failure of the Employee to adequately perform the duties and
responsibilities specified in Section III hereof shall be considered a
breach of this Agreement
(c) By the Company, effective immediately and without notice, for
cause. For purposes of this Section VII (c), "cause" for termination
shall be deemed to exist upon the conviction of the Employee of, or the
entry of a pleading of guilty or nolo contendere by the Employee to,
any crime involving moral turpitude or any felony.
(d) Upon the death or disability of the Employee. As used in this
Agreement, the term "disability" shall mean the inability of the
Employee, due to a physical or mental disability, to perform the
essential functions of his/her job with or without a reasonable
accommodation by the Company.
VIII. Rights Following Termination
----------------------------
(a) Following termination of this Agreement, pursuant to Section
VII(b), VII(c), VII(d), or at the option of the Employee pursuant to
Section VII(a), the Company shall have no further responsibility to
Employee except to pay Base Salary and Bonus Compensation as provided
under the terms of any related bonus plan or arrangement up to and
including the last day of employment.
(b) Following termination of this Agreement at the option of the
Company pursuant to Section VII(a), the Company shall continue to pay
to the Employee the Base Salary in accordance with its then current
payroll policies until the earlier of either expiration of the Notice
Period or the date Employee commences employment or consulting with a
third party during the Notice Period, together with any Bonus
Compensation payable as provided under the terms of any related bonus
plan or arrangement through the date of the notice of termination given
by the Company under Section VII (a) above. Employee shall
3
perform such services for the Company as mutually agreed upon between
Company and Employee as to scope, timing and location during such
Notice Period. The Employee shall not be eligible to receive the
payments during the Notice Period unless and until the Employee signs a
release in the form attached hereto as Exhibit A.
(c) In the event of termination of this Agreement, Employee shall, at
the instruction of the Company, promptly return to the Company or its
designee all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or other
written, photographic, or other tangible material supplied by the
Company to the Employee or created or maintained for the Company by the
Employee.
(d) Except as set forth above, neither party shall be entitled to any
compensation or claim for goodwill or other loss, suffered by reason or
termination of this Agreement.
(e) The rights and obligations of the parties to this Agreement set
forth in Section VIII and Section IX shall survive any termination or
expiration of this Agreement. The termination of this Agreement shall
in no case relieve either party from its obligations to pay to the
other any monies accrued hereunder prior to such termination or
expiration.
(f) Employee shall not disclose the terms of this Agreement to any
third party unless such third party is obligated to keep such
information confidential.
IX. Non-Competition
---------------
(a) During the Employment Period and (i) for a period of one year
after the termination of this Agreement pursuant to Sections
VII(b), VII(c), VII(d) or at the option of the Employee pursuant
to Section VII(a) or expiration thereof or (ii) in the event of
termination of this Agreement by the Company without cause under
Section VII (a) for the Notice Period, the Employee will not
directly or indirectly:
(i) as an individual, proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than one
percent (1%) of the total outstanding stock of a publicly held
company), engage in the business of developing, producing, marketing or
selling products or services of the kind or type developed or being
developed, produced, marketed or sold by the Company or any subsidiary
of the Company while the Employee was employed by the Company provided
that the foregoing restriction shall not apply after the end of the
Employment Period to activities that are not related to the Company's
year 2000 business activities.; or
(ii) recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company to terminate their employment
with, or otherwise cease their relationship with, the Company; or
4
(iii) solicit, divert or take away, or attempt to divert or take
away, the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts, of the Company
which were contacted, solicited, served or known by the Employee while
employed by the Company.
(b) If any restriction set forth in this Section IX is found by any
court of competent jurisdiction to be unenforceable because it extends
for too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to extend
only over the maximum period of time, range of activities or geographic
area as to which it may be enforceable.
(c) The restrictions contained in this Section IX are necessary for the
protection of the business and goodwill of the Company and are
considered by the Employee to be reasonable for such purpose. The
Employee agrees that any breach of this Section IX will cause the
Company substantial and irrevocable damage and therefore, in the event
of any such breach, in addition to such other remedies which may be
available, the Company shall have the right to seek specific
performance and injunctive relief.
X. Other Agreements
----------------
Employee represents that his performance of all the terms of this
Agreement and as an employee of the Company does not and will not breach any
employment agreement with any previous employer or any agreement with any
previous employer or other party to keep in confidence proprietary information,
knowledge or data acquired by him in accordance or in trust prior to his
employment with the Company or to refrain from competing, directly or
indirectly, with the business of such previous employer or any other party.
Employee has executed the Company's standard confidentiality and nondisclosure
agreement.
XI. Notices
-------
All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or, if mailed, when mailed by certified or registered mail,
postage prepaid, or by recorded delivery service to the parties at the addresses
set forth below their signatures to this Agreement or at such other address as
may be given in writing by either party to the other party in accordance with
this Section XI.
XII. Assignability
-------------
Employee acknowledges that the Company is entering into this Agreement
in reliance upon the personal reputation, qualifications and abilities of the
Employee and accordingly, the Employee may not assign his rights or obligations
under this Agreement, either voluntary or by operation of law.
5
XIII. Miscellaneous
-------------
(a) This Agreement shall not be binding upon the Company until it has
been executed by a duly authorized officer of the Company.
(b) This Agreement shall be governed by, and construed in accordance
with, the substantive laws of The Commonwealth of Massachusetts.
(c) This Agreement constitutes the entire understanding between the
parties relating to the subject matter of this Agreement and supersedes
all prior writings, negotiations or understanding with respect thereto
except the confidentiality and nondisclosure agreement referenced in
Section X above. No modification or addition to the Agreement shall
have any effect unless it is set forth in writing and signed by both
parties.
(d) The waiver by the Company of any breach of any provision of this
Agreement shall not be construed as a waiver of any other breaches of
the same or of other provisions of this Agreement.
(e) Should any provision of this Agreement be declared or be determined
by any court of competent jurisdiction to be illegal or invalid, the
validity of the remaining parts, terms, or provisions shall not be
affected thereby and said illegal and invalid part, term or provision
shall be deemed not to be a part of this Agreement.
(f) The exercisability of Employee's options granted under the
Company's 1997 Stock Incentive Plan in the event of an "acquisition
event" as such term is defined in such plan shall be governed by the
terms of such plan under which such options are granted and any related
option agreements.
(g) This Agreement shall be binding on the parties hereto and their
respective heirs, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized officers as of the date first above written.
Peritus Software Services, Inc.
/s/ Xxxxxx Xxxx By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------- ----------------------------------
Employee Signature
Address: 0000 Xxxx Xxxxxxxxx Xx. Address: 000 Xxxxxxx Xxxx
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxxxxxx, XX 00000-0000
Attn: President
6
EXHIBIT A
---------
RELEASE
1. Release. In consideration of the payments provided to me under a certain
-------
employment contract between Peritus Software Services, Inc., a Massachusetts
Corporation (the "Company") and me, I hereby fully, forever, irrevocably and
unconditionally release, remise and discharge the Company, and any subsidiary or
affiliated organization of the Company or their respective current or former
officers, directors, stockholders, corporate affiliates, attorneys, agents and
employees (the "Released Parties") from any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, amounts of money,
promises, doings, omissions, damages, executions, obligations, liabilities, and
expenses (including attorneys' fees and costs), of every kind and nature, known
or unknown, which I ever had or now have against the Released Parties,
including, but not limited to, all claims arising out of my employment, all
claims arising out of your separation of my employment, all claims of race, sex,
national origin, handicap, religious, sexual orientation, benefit and age
discrimination, all employment discrimination claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. (S)2000 et seq., the Age Discrimination
in Employment Act, 29 U.S.C. (S)621 et seq., the Americans with Disabilities
Act of 1990, 29 U.S.C. (S)12101 et seq., The Employee Retirement Income
Security Act of 1974, 29 U.S.C. (S)1001 et seq., and similar state or local
statutes, wrongful discharge claims, common law tort, defamation, breach of
contract and other common law claims, and any claims under any other federal,
state or local statutes or ordinances not expressly referenced above.
2. Entire Understanding and Applicable Law. This Release contains and
---------------------------------------
constitutes my entire understanding with respect to the settlement of claims
against the Company and the Released Parties and cancels all previous oral and
written negotiations, agreements, commitments, and writings in connection
therewith. This Release shall be governed by the substantive laws of The
Commonwealth of Massachusetts to the extent not preempted by federal law.
3. Acknowledgements. I acknowledge that I have been given at least twenty-one
----------------
(21) days to consider this Release and that the Company advised me to consult
with any attorney of my own choosing prior to signing this Release. I
acknowledge that I may revoke this Release for a period of seven (7) days after
signing it, and the Release shall not be effective or enforceable until the
expiration of this seven (7) day revocation period.
Date: Employee's Signature:
_________________________ ________________________
Employee's Name: Xxxxxx X. Xxxx
7
