EMPLOYMENT AGREEMENT
EFFECTIVE DATE: January 2, 1997
PARTIES AND ADDRESSES:
CorVu Corporation
0000 Xxxxxx Xxxxx Xxxxx, #000
Xxxx Xxxxxxx, XX 00000-0000 (the "Company")
Xxxx X. Xxxxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 ("Executive")
RECITALS:
A. The Company is a Minnesota corporation engaged principally in the
business of developing, manufacturing and selling business software programs.
B. The Company and Executive desire to enter into an employment
agreement for Executive's services on the terms stated herein. This Employment
Agreement will be referred to as the "Agreement." This Agreement represents the
complete agreement of the parties and supercedes any other understandings or
agreements whether written or oral.
AGREEMENTS:
In consideration of the mutual promises and undertakings set forth
herein, the Company and Executive agree as follows:
ARTICLE 1
Term of Employment, Duties and Supervision
1.1) Employment; Term. The Company hereby employs Executive as its Vice
President of Marketing pursuant to the terms of this Agreement, and Executive
hereby accepts such employment as of the date hereof. Unless terminated pursuant
to Articles 4 or 5, the term of employment shall continue until June 30, 1997
(the "Term"), and thereafter shall renew automatically for successive terms of
one year each, upon the terms and conditions set forth in this Agreement, as
such may be modified by mutual written agreement of the parties from time to
time; provided, however, that either Executive or the Company may terminate the
employment of Executive during the Term in accordance with, and subject to the
right of Executive to receive payments and other benefits that may be due
pursuant to, Article 5. Each 12-month period commencing July 1 through the
following June 30 during the Term is referred to as an "Employment Year".
1.2) Duties; Title.
(a) Executive agrees, during his employment, to devote his full
time and best efforts to the business of the Company,
including, without limitation, the performance of those duties
and responsibilities reasonably and customarily associated
with the position of the Company's Vice President of
Marketing; provided, however, that Executive's duties and
responsibilities consistent with Executive's position shall be
subject to determination by the Company's Chief Executive
Officer. While serving as Vice President of Marketing,
Executive shall be granted such powers and authority as are
reasonably and customarily associated with the position of
Vice President of Marketing. The Executive's duties will
consist of, but not be limited to the following:
i) Marketing Budget responsibility, including incurring
expenses within established budgets and guidelines,
ii) Balancing and coordinating business shows,
advertising, direct mail, seminars and PR news
releases,
iii) Directing and managing the public relations,
iv) Briefing industry press and analysts,
v) Analyzing impact and effect of marketing investment,
vi) Developing CorVu white paper and other marketing
collateral,
vii) Developing competitive product portfolios and
enabling internal awareness,
viii) Developing CorVu briefing papers for business shows
and seminars.
(b) Executive shall report to, and at all times shall be subject
to the direction of, the Company's Chief Executive Officer
and/or his designee.
(c) Executive's title shall remain subject to the control of the
Board of Directors.
1.3) Additional Requirements. Executive, at all times during his
employment with the Company, shall comply with the Company's reasonable
standards, regulations and policies as determined or set forth by the Board of
Directors from time to time and as applicable to all employees and/or executive
employees of the Company.
1.4) Outside Activities. The Company acknowledges and agrees that from
time to time Executive may serve as a member of the Board of Directors of one or
more businesses or nonprofit entities other than the Company; provided, however,
that Executive provides the Company's Board of Directors with information about
each proposed directorship, including time required by such directorship,
whether such directorship may involve conflicts of interest with the Company or
its interests, the types of risks which such directorship may involve, and any
other factors Executive or the Board of Directors considers material respecting
such directorship. The Company's Board of Directors shall promptly consider all
submissions by Executive pursuant to this Paragraph 1.4. The Company's Board of
Directors may request in good faith that Executive not accept a particular
directorship, or more than a specific number of directorships, or that Executive
resign from a particular directorship, and Executive agrees to honor such
requests.
1.5) Prior Agreements. Executive acknowledges and warrants that he is
not subject to any prior agreements that would in any way, restrict the
performance of his duties as Vice President of Marketing for the Company,
including the recruitment and hiring of other employees. If Executive is subject
to agreements which could restrict such activities, these agreements must be
fully disclosed to the Company by providing a copy of such agreements which will
then become a part of this agreement as Appendix 1.
ARTICLE 2
Compensation
2.1) Compensation. Subject to Paragraph 4.2 and Articles 5, 7, 8 and 9
hereof, Executive shall be paid compensation for the performance of his duties
hereunder as follows:
(a) Salary. The Company shall pay Executive a base salary at the
rate of $110,000 per year for the Employment Year commencing
January 2, 1997. Prior to the close of each Employment Year
the Company's Chief Executive Officer shall review Executive's
performance for such Employment Year and shall establish
Executive's base salary for the next succeeding Employment
Year. Executive's salary shall be payable monthly. The Company
shall be entitled to deduct or withhold all taxes and charges
which the Company may be required to deduct or withhold
therefrom.
(b) Bonus Compensation. Executive may earn performance bonuses for
each Employment Year, based on the following:
i) a bonus of $18,000 paid upon the achievement of
Company profits of $750,000 for the fiscal year ended
June 30, 1997,
ii) an additional bonus of $18,000 paid upon the
achievement of Company profits of $1,200,000 for the
fiscal year ended June 30, 1997,
iii) an additional bonus of $18,000 paid upon the
achievement of Company profits of $1,500,000 for the
fiscal year ended June 30, 1997.
Total bonuses of $54,000 which can be earned based on
achieving the Company profit goals detailed above are payable
on a quarterly basis, provided quarterly profit goals are
attained, based on the following formula: for the first
quarter ended September 30, 1996- 10% of bonus, for the second
quarter ended December 31, 1996- 15% of bonus, for the third
quarter ended March 31, 1997- 25% of bonus, for the fourth
quarter ended June 30, 1997- remainder of bonus not yet paid.
An additional quarterly bonus of $9,000 can be attained based
on the performance of duties indicated in Article 1.2 (a).
This bonus is subjective in nature and, as a result, will be
awarded at the discretion of the Chief Executive Officer.
(c) Stock Options. Executive is awarded options to purchase up to
100,000 shares of the Company's common stock at a price of
$2.85 per share. These options are exercisas follows: 30,000
shares after twelve months of employment, 40,000 after twenty
four months of employment, 30,000 after thirty six months of
employment.
(d) No Past Salary or Other Obligations. Executive acknowledges
that at the date hereof the Company was not indebted to
Executive for any amount, whether arising out of Executive's
prior service to the Company or otherwise.
(e) Fiscal Year. For purposes of this Agreement the Company's
fiscal year is assumed to be June 30.
2.2) Termination of Compensation. Except as provided in Articles 4, 7,
8 and 9 of this Agreement, the Company's obligation to pay compensation to
Executive under this Article 2 shall terminate at the close of business on the
date on which Executive's employment is terminated; provided, however, that:
(a) the Company shall remain liable to pay Executive any amounts
due Executive for services rendered prior to such termination
date pursuant to Paragraph 2.1(a); and
(b) the Company shall calculate Executive's earned bonus
compensation pro rata to and including the date of
termination; and shall pay Executive any earned bonus within
sixty (60) days following the close of the month in which the
date of termination occurs, unless otherwise agreed. To the
extent portions of such bonus compensation are based on the
completion of specific tasks or objectives, and such tasks or
objectives have been completed prior to Executive's
termination, bonus portions allocable to same shall be paid in
full.
ARTICLE 3
Expenses
3.1) Expenses. During the term of this Agreement, Executive shall be
entitled to prompt reimbursement by the Company for all reasonable, ordinary and
necessary travel, entertainment and other business related expenses incurred by
Executive (in accordance with the policies and procedures established by the
Company from time to time) in the performance of his duties and responsibilities
under this Agreement; provided, however, that Executive shall properly account
for such expenses in accordance with federal, state and local tax requirements
and the Company's policies and procedures.
ARTICLE 4
Benefits
4.1) Vacations; Holidays. Executive shall be entitled to two weeks paid
vacation during his first Employment Year, three weeks during his second
Employment Year and four weeks for succeeding Employment Years, plus all
holidays in accordance with the Company's policies in effect from time to time.
Executive shall not be entitled to carry unused vacation forward from one
Employment Year to the next. Executive shall not be entitled to compensation in
any form in lieu of use of vacation and/or holiday time off.
4.2) Compensation During Sickness or Disability.
(a) Subject to the remaining provisions of this Paragraph 4.2,
Executive shall be entitled to receive the monthly portion of
Executive's annual base salary and bonus in accordance with
Article 2 hereof for up to ten business days for absences for
physical or mental illness or injury during any Employment
Year which do not give rise to a determination of Executive's
disability pursuant to Paragraph 4.2(b) below.
(b) As attendance on the job is agreed by Executive and Company to
be an essential function of Executive's position, the parties
further agree that in the event of a prolonged absence as
defined below the parties agree to the disability payments to
Executive as stated in this subparagraph. Subject to Paragraph
4.2(j), if, during any Employment Year, Executive is absent
from Executive's employment for more than ten (10) business
days, plus that number of unused vacation days which Executive
may also determine to utilize for absences by reason of
physical or mental illness or injury, at any one time or more
than forty (40) business days in total, by reason of physical
or mental illness or injury, as determined by an examining
physician or mental health professional acceptable to the
Company, or in the event any other accident or occurrence
gives rise to the likelihood of Executive's absence for more
than the period of time specified above for reason of physical
or mental illness or injury, as determined by the Company or
an examining physician or mental health professional
acceptable to the Company, Executive shall be deemed disabled
for the purposes hereof. In such event, Executive shall be
entitled to receive his bonus earned to the date of
disability. In addition, Executive shall be entitled to
receive fifty percent (50%) of his base salary under Article
2, continued payment by the Company of Executive's share of
health, life and disability insurance premiums (to the extent
such benefits are offered by the Company to its executive
employees and subject to the conditions or limitations of such
insurance plans) during the first 90 calendar days from the
date such disability is determined to have occurred, and,
during such period, the Company may discontinue all other
payments to or on behalf of Executive under this Agreement.
After such 90 calendar day period, the Company shall terminate
all payments to Executive. Notwithstanding anything herein to
the contrary, such 90 calendar day period shall begin to run
from the date such disability is determined to have occurred,
only after Executive has utilized all days to which Executive
is entitled and which Executive determines to use under
Paragraphs 4.1 and 4.2(a).
(c) If prior to any termination of Executive's employment under
this Paragraph 4.2 Executive is able to resume performance of
his duties under this Agreement, and if within ninety (90)
days of the resumption of such duties Executive is again
absent from his employment by reason of physical or mental
illness or injury such subsequent disability period shall be
deemed to be a continuation of the immediately preceding
disability period, and the disability payments made by the
Company to Executive shall be made only for the remainder, if
any, of the ninety (90) calendar day income continuation
period provided for above, and in no event shall disability
payments hereunder be made for a period or periods aggregating
more than ninety (90) calendar days in any 12-month period.
(d) Any disability compensation payable under this Article 4 shall
be reduced by:
(i) any amount which is paid to Executive under any
private disability benefit plan or arrangement to
which the Company contributes or has contributed;
(ii) any benefits paid or payable to Executive on account
of the disability of Executive under any worker's
compensation law, occupational disease law, or
similar legislation of any state or of the federal
government;
(iii) 50% of the amount of any related benefit which
Executive would be entitled to receive under the
Federal Social Security Act as in effect at the time
the payment hereunder is made; and
(iv) any benefits paid or payable to Executive under any
law of any state or of the federal government now in
force or hereafter enacted as compensation, wages or
benefits in lieu of wages on account of disability.
(e) Subject to a determination by the Company that Executive is
capable of returning to part or full-time employment, the
determination of the Company being conclusive if made with the
advice of a competent physician or mental health professional
selected by it, Executive may return to part-time or full-time
employment at any time prior to any termination of Executive's
employment under this Paragraph 4.2. Following Executive's
return to employment:
(i) if Executive returns to full-time employment, his
compensation shall be determined as though Executive
had not been disabled; or
(ii) if Executive returns to part-time employment,
Executive shall be entitled to a reasonable amount of
compensation for Executive's services rendered to the
Company as determined by a reasonable standard to be
set by the Company's Board of Directors.
(f) If Executive's employment is terminated, except for the
reasons stated in subparagraph (a), (b), (c)(iv) or (v), or
(d) of Paragraph 5.1 hereof, while the Company is making
disability payments to Executive, Executive shall be entitled
to receive the disability payments to which Executive would
otherwise be entitled pursuant to the provisions of this
Paragraph 4.2.
(g) The Company shall comply with all applicable state and federal
laws relating to the disability of an employee, including laws
regarding reasonable accommodation requirements and laws
governing the granting of medical leaves of absence.
4.3) Life and Health Insurance; Other Benefits. During Executive's
employment, the Company shall provide such benefits to Executive as the Company
provides for its executive officers from time to time, provided that the Company
may exclude Executive from participation in any 401(k) plan which the Company
implements to the extent deemed advisable to ensure the continued qualification
of such plan under applicable tax laws and in lieu thereof compensate Executive
appropriately to make up for his exclusion. Nothing in this Paragraph 4.3 shall
be construed to require the Company to provide or continue to provide Executive
with any benefits, nor shall Company be prohibited from canceling benefits which
it determines to provide or requiring co-payments respecting such benefits at
any time.
ARTICLE 5
Termination
5.1) Events of Termination. Executive's employment hereunder:
(a) May be terminated by mutual written agreement of the parties.
(b) Shall terminate immediately upon the death of Executive.
(c) May be terminated by the Company upon written notice to
Executive for "Cause", which shall mean the following:
(i) Material failure of Executive to (a) faithfully,
diligently or competently perform the material
duties, requirements and responsibilities of his
employment as established pursuant to this Agreement,
or (b) take reasonable direction consistent with the
position for which he has been employed as described
in Article 1 from the Chief Executive Officer or his
designee; or
(ii) Failure of Executive to materially comply with the
reasonable policies, regulations and directives of
the Company as in effect from time to time; or
(iii) Any act or omission on the part of Executive which
constitutes a material failure to comply with
material provisions of this Agreement; or
(iv) Any act or omission on the part of Executive which is
clearly and materially harmful to the reputation or
business of the Company, including, but not limited
to, conduct which is inconsistent with federal and
state laws respecting harassment of, or
discrimination against, one or more of the Company's
employees; or
(v) Conviction of Executive of, or a guilty or nolo
contendere plea by Executive with respect to, any
crime punishable as a felony; or any bar against
Executive from serving as a director, officer or
employee of any firm the securities of which trade
publicly.
(d) Shall terminate in accordance with the provisions of Paragraph
4.2(b) hereof. Nothing in Paragraph 4.2(b) hereof or in this
Paragraph 5.1(d) shall limit the right of either party to
terminate Executive's employment under any other subparagraph
of Paragraph 5.1; provided, however, that if Executive is
receiving disability payments under Paragraph 4.2(b) the
Company may not terminate this Agreement under Paragraphs
5.1(c)(i) or (g).
(e) Shall terminate upon Executive's reaching the normal
retirement date established by the Company for senior
management employees of the Company, but in no event earlier
than the compulsory retirement age permitted under federal or
similar law for senior management employees.
(f) May be terminated by the Company, for any or no reason, on 60
days' written notice to Executive; provided that if at the
time of such termination "Cause" exists and the written notice
specified in subparagraph (c) above is given, then such
termination by the Company shall be considered to be pursuant
to subparagraph (c) above.
(g) May be terminated by Executive, for any or no reason, on 60
days' written notice to the Company.
5.2) Compensation Upon Termination of Executive's Employment. In the
event that Executive's employment with the Company terminates, the following
provisions shall govern as applicable:
(a) If termination occurs pursuant to Paragraph 5.1(a) (by mutual
written agreement), base salary will be paid for a period of
three months after the date of termination if such date occurs
within the first year of employment, with an additional one
month of base pay added for each year of employment to a
maximum of six months. In exchange for such compensation,
Executive agrees not to accept a position with another company
considered to be in a similar field or business as that of the
Company for a period of six months.
(b) If termination occurs pursuant to Paragraph 5.1(b) (for
death), all benefits shall terminate as of the termination
date, and base salary and bonus shall terminate as provided in
Paragraph 2.2.
(c) If termination occurs pursuant to Paragraph 5.1(c) (for Cause)
or (g) (resign for any or no reason), all benefits shall
terminate as of the termination date, and base salary and any
earned bonus shall be paid to the date of termination as
provided in Paragraph 2.2. In addition, Executive agrees not
to accept a position with another company considered to be in
a similar field or business as that of the Company for a
period of six months.
(d) If termination occurs pursuant to Paragraph 5.1(d)
(disability), the provisions of Paragraph 4.2 shall govern the
termination of benefits, base salary and bonus. In addition,
Executive agrees not to accept a position with another company
considered to be in a similar field or business as that of the
Company for a period of six months.
(e) If termination occurs pursuant to Paragraph 5.1(e)
(retirement), the provisions of Paragraph 5.2(b) shall govern
the termination of benefits, base salary and bonus. In
addition, Executive agrees not to accept a position with
another company considered to be in a similar field or
business as that of the Company for a period of six months.
(f) If termination occurs pursuant to 5.1(f) (by the Company
without Cause) then Executive's base salary will be paid for a
period of three months after the date of termination if such
date occurs within the first year of employment, with an
additional one month of base pay added for each year of
employment to a maximum of six months. In exchange for such
compensation, Executive agrees not to accept a position with
another company considered to be in a similar field or
business as that of the Company for a period of six months.
All payments made to Executive under this Paragraph 5.2 shall be reduced by
amounts (i) required to be withheld in accordance with federal, state and local
laws and regulations in effect at the time of payment, or (ii) owed to the
Company by Executive for any amounts advanced, loaned or misappropriated.
5.3) Continuation of Performance of Services After Notice of
Termination. In the event of termination of employment of Executive under the
notice provisions of Section 5.1(c) or during any period following a
notification of termination of Executive's employment by Company, Company may,
in its sole discretion, determine the date on which Executive is to discontinue
performing services for Company, which date may be any date after the notice is
given and prior to the actual date of termination of Executive's employment.
Nothing in this subparagraph shall be construed to prohibit Company from
requiring that Executive continue to perform Executive's duties under this
Agreement prior to the actual date of termination of Executive's employment,
subject to the rights of Executive under Section 4.1 of this Agreement. After
any notice of termination Company may also determine whether any continuing
services on the part of Executive shall be performed on or off the Company's
premises. In any event during any period after notice of termination of
Executive's employment and prior to the actual termination of Executive's
employment Executive shall be available to Company for consultation, and so
shall consult with Company, as to matters in which Executive was involved during
his employment with Company.
5.4) Return of the Company Property. In the event of termination of
Executive's employment all corporate documents, records, files, credit cards,
computer disks and tapes, computer access card, codes and keys, file access
codes and keys, building and office access cards, codes and keys, materials,
equipment and other property of the Company which is in Executive's possession
shall be returned to the Company at its principal business office on the date of
termination of Executive's employment, or within five days thereafter if
termination occurs without notice. Executive may copy, at Executive's expense,
documents, records, materials and information of the Company only with the
Company's express, written permission.
ARTICLE 6
Inventions, Plans and Ideas
6.1) Definition. "Inventions, plans and ideas" as used in this Article
6 mean any discoveries, ideas, plans and improvements (whether or not they are
in writing or reduced to writing or embodied solely in practices of the Company)
or works of authorship (whether or not they are or can be patented or
copyrighted) that Executive makes, authors, or conceives (either alone or with
others) and that:
(a) concern the Company's business or the Company's research or
development or planning that can be demonstrated to relate to
the Company's then-current business or any planned business
discussed with the Board of Directors which the Company is
actively exploring; or
(b) result from and relate to any work Executive performs for the
Company which work also meets the criteria of subparagraph
(a); or
(c) use the Company's trade secret information.
6.2) Property of the Company. Executive agrees that all "inventions,
plans and ideas" he makes during the term of this Agreement will be the
Company's sole and exclusive property. Executive will, with respect to any such
"invention, plan or idea":
(a) keep current, accurate and complete records which will belong
to the Company and be kept and stored on the Company's
premises while Executive is employed by the Company.
(b) promptly and fully disclose the existence and describe the
nature of the invention, plan or idea to the Company in
writing (upon request).
(c) assign, and Executive hereby does assign, to the Company all
of his rights to any such "invention, plan or idea", and any
applications which he may make for patents, copyrights,
trademarks or service marks in any country.
(d) acknowledge and deliver promptly to the Company any written
instruments, and perform any other acts necessary in the
Company's reasonable opinion, to preserve property rights in
any invention, plan or idea against forfeiture, abandonment or
loss, and to obtain and maintain letters patent and/or
copyrights and/or marks on any invention, plan or idea and to
vest the entire right and title to such "invention, plan or
idea" in the Company.
NOTICE: Pursuant to Minnesota Statutes ss. 181.78, Executive is hereby notified
that this Article 6 does not apply to any invention for which no equipment,
supplies, facility, or trade secret information of the Company was used and
which was developed entirely on Executive's own time, and (1) which does not
relate (a) directly to the business of the Company or (b) to the Company's
actual or demonstrably anticipated research or development, or (2) which does
not result from any work performed by the employee for the Company.
6.3) Executive Claims. Executive does not have, and will not assert,
any claims to or rights under any "inventions, plans or ideas" as having been
made, conceived, offered or acquired by Executive prior to his employment by the
Company. Further, and without limiting the foregoing, Executive has contributed
and assigned, and hereby does contribute and assign, to the Company all
"inventions, plans and ideas" within the meaning of this Article 6.
ARTICLE 7
Confidential Information
7.1) Definition. "Confidential Information" as used in this Article 7
means information (a) that is not generally known to the public and (b) that is
proprietary to the Company or that the Company is obligated to treat as
proprietary. Confidential Information shall include, without limitation:
(1) trade secret information about the Company and its products
and services; and
(2) Any information that the Company reasonably considers or
treats as Confidential Information, or that Executive actually
knows or reasonably should know that the Company considers or
treats as Confidential Information (whether Executive or
others originated it and regardless of how Executive obtained
it).
7.2) Use Prohibited. Except as required in his duties to the Company,
Executive will never knowingly, either during or after his employment by the
Company, use or disclose Confidential Information to any person not authorized
by the Company to receive it, excluding Confidential Information (a) which
becomes publicly available through a source other than Executive, (b) which is
made public by the Company, (c) which is received by Executive after termination
of this Agreement from a third party who obtained the information on a
non-confidential basis from the Company, (d) for which disclosure thereof the
Company has consented to in writing, or (e) that Executive is compelled to
disclose in any judicial or administrative proceeding. Promptly upon termination
of Executive's employment with the Company, Executive will turn over to the
Company all records, documents, materials and any compositions, articles,
devices, apparatus and other items that disclose, describe or embody
Confidential Information, including all copies and reproductions thereof, in
Executive's possession, regardless of who prepared them.
7.3) Violation by Executive. If it is determined by an arbitration
proceeding or a final, non-appealable judgment of a court of law or equity that
Executive has breached Article 7 with regard to material information the Company
shall be relieved of further severance payments to Executive, and Executive
shall repay to the Company all severance payments previously received.
ARTICLE 8
Competitive Activities Prohibited
8.1) Prohibition; Duration. Executive agrees that, during his
employment with the Company, Executive will not alone, or in any capacity with
another firm, individual or person:
(a) directly or indirectly, whether as an employee, officer,
director, shareholder, (provided, however, that passive
investments in publicly traded securities not exceeding five
percent of the issuer's capital stock shall be permitted),
partner, agent, owner, representative, consultant or
otherwise, engage in any activity, in any state or foreign
country, that competes with the Company's products or services
produced, sold or rendered in the ordinary course of the
Company's business as of the date of Executive's termination,
or products or services demonstrated to have been formally
planned and approved before the date of Executive's
termination for production or sale;
(b) in any way interfere or attempt to interfere with the
Company's relationships with any of its then-current
customers, suppliers, vendors or investors; or
(c) employ or attempt to employ any of the Company's employees, or
the employees of any enterprise managed or owned by the
Company on behalf of any other entity competing with the
Company.
All of the above activities are "Competitive Activities".
8.2) Exception. Nothing in Paragraph 8.1 shall restrict the Executive's
employment by, or association with, an entity, venture or enterprise which
engages in a business with a product or service competitive with any product or
service, or planned product or service per Paragraph 8.1(a), of the Company so
long as Executive's employment or association with such entity, venture or
enterprise is limited to work which does not directly involve products or
services which compete with any product or service offered, or planned to be
offered per Paragraph 8.1(a), by the Company at the date of Executive's
termination.
8.3) Violation by Executive. If it is determined by an arbitration
proceeding or a final non-appealable judgment of a court of law or equity that
Executive has breached Article 8 in a material manner the Company shall be
relieved of further severance payments to Executive, and Executive shall repay
to the Company all severance payments previously received.
8.4) Notice to New Employer. Executive will, prior to accepting
employment with any new employer, inform that employer of this Agreement and
provide that employer with a copy of Article 8 of this Agreement.
ARTICLE 9
Certain Company Remedies
9.1) Certain Company Remedies. The parties acknowledge that the Company
will suffer irreparable harm if the Executive breaches Paragraph 5.3 and/or
Articles 6, 7 and/or 8 of this Agreement, either during or after its term.
Accordingly, the Company shall be entitled to any right or remedy it may have,
under this Agreement or otherwise, at law or equity, including but not limited
to, an injunction, enjoining or restraining Executive from any violation of
Paragraph 5.3 and/or Articles 6, 7 and/or 8 of this Agreement.
9.2) Payment of Fees and Expenses. If either party initiates or becomes
a party to a formal proceeding in law or equity, or under arbitration, involving
this Agreement, and if either party obtains a substantial portion of the relief
requested by that party (the "prevailing party"), then the non-prevailing party
shall pay all of its and the prevailing party's reasonable costs and expenses,
including reasonable attorneys' fees and expenses, incurred with respect to such
proceeding. If neither party obtains a substantial portion of the relief
requested each shall bear its/his own expenses. In the event Executive is
terminated pursuant to Paragraph 5.1 (c) and determines to challenge the
Company's determination of "Cause", the Company and Executive shall each bear
its/his own expenses in connection with any proceeding initiated by Executive
with respect to the determination as to "Cause".
ARTICLE 10
Indemnification
10.1) As to acts or omissions of Executive which are within the scope
of Executive's authority as an officer and/or director of the Company and/or any
affiliate of the Company, the Company shall indemnify Executive, and his legal
representatives and heirs to the maximum extent permitted by Minnesota law.
ARTICLE 11
Miscellaneous
11.1) Successors and Assigns. This Agreement is binding on and inures
to the benefit of the Company, and its successors and assigns. the Company
agrees that the Company shall be deemed to have materially breached this
Agreement if its successor or assign does not assume all of the Company's
material obligations under this Agreement. The rights and obligations of
Executive under this Agreement are personal and may not be assigned or
transferred without the express written consent of the Company.
11.2) Modification. This Agreement supersedes all prior agreements and
understandings between the parties. This Agreement may be modified or amended
only by a writing signed by the Company and Executive.
11.3) Waivers. No failure or delay by either the Company or Executive
in exercising any right or remedy under this Agreement shall be deemed a waiver
of any provision of this Agreement. Nor shall any single or partial exercise by
either the Company or Executive of any right or remedy under this Agreement
preclude either from otherwise or further exercising rights or remedies granted
under this Agreement.
11.4) Notices. Any and all notices referred to herein shall be deemed
properly given only if in writing and delivered personally or sent postage
prepaid, by certified mail, return receipt requested, as follows:
(a) To the Company, to the attention of the Company's Chief
Executive Officer, at its office set forth on page 1 of this
Agreement or at such other address as the Company may specify
in writing to Executive, with a copy to each member of the
Company's Board of Directors, and to Xxxxxxxxxx & Xxxxx, P.A.,
1100 International Centre, 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxx X. Xxxxx.
(b) To Executive at his home address as it then appears on the
records of the Company, it being the duty of the Executive to
keep the Company informed of his current home address at all
times.
The date on which notice to the Company or Executive shall be deemed to have
been given if mailed as provided above shall be the date on the certified mail
return receipt. Personal delivery to Executive shall be deemed to have occurred
on the date notice was delivered to Executive personally or deposited in a mail
box or slot or left with security or administrative personnel, at Executive's
residence by a representative of the Company or any messenger or delivery
service.
11.5) Action by Board of Directors. Any action required by the
Company's Board of Directors under this Agreement may be taken by majority vote
of a duly authorized committee having authority over the matter in question or
by a majority of the remaining members of the Board of Directors, not counting
Executive, then serving.
11.6) Judicial Review; Severability. In the event that a court of
competent jurisdiction determines that any of the provisions of this Agreement
are unreasonable, it may limit such provision to the extent it deems reasonable,
without declaring the provision or this Agreement invalid in its entirety. This
provision shall not be construed as an admission by the Company, but is only
included to provide the Company with the maximum possible protection for its
business, Confidential Information, inventions, trade secrets and data,
consistent with the right of the Executive to earn a livelihood subsequent to
the termination of his employment.
To the extent any portion of any provision of this Agreement shall be
deemed invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and the remainder of this Agreement shall be
unaffected and shall continue in full force and effect.
The Company and Executive desire that this Agreement shall be given the
construction which renders its provisions valid and enforceable to the maximum
extent, not exceeding its express terms, permissible under applicable law.
11.7) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Minnesota.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement on January 2, 1997 to be effective as of the effective date set forth
above.
CORVU CORPORATION ("the Company")
By: /s/ Xxxxxx XxxXxxxxx
Xxxxxx XxxXxxxxx, Chief Executive Officer
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx ("Executive")
