EXHIBIT 10.11
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EMPLOYMENT AGREEMENT
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Bridgeline Software, Inc., a Delaware corporation (the "EMPLOYER" or the
"COMPANY") and Xxxx X. Xxxx (the "EMPLOYEE"), in consideration of the mutual
promises made herein, agree as follows:
ARTICLE 1
TERM OF EMPLOYMENT
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SECTION 1.1 SPECIFIED PERIOD. Employer hereby employs Employee, and Employee
hereby accepts employment with Employer for the term beginning the date executed
hereunder (the "COMMENCEMENT DATE"), and continuing for one year from the
Commencement Date, which term shall automatically renew for successive periods
of one (1) year each unless either party gives written notice to the other party
of its intention not to renew this Agreement not less than sixty (60) days prior
to the end of the applicable year. The provisions of Sections 2.3, 2.4, 2.5 and
2.6 of this Agreement shall continue in force so long as the Employee remains
employed by the Employer or any Affiliate of the Employer, whether under this
Agreement or not, and whether as a consultant or not, and shall survive any
termination of employment under this Agreement for the periods specified
therein, all as is more specifically provided in Section 7.10. Once this
Employment Agreement terminates then, if the Employee continues employment, the
Employee shall become an employee at will.
SECTION 1.2 EMPLOYMENT TERM DEFINED. As used herein, the phrase "employment
term" refers to the entire period of employment of Employee by Employer
hereunder.
ARTICLE 2
DUTIES AND OBLIGATIONS OF EMPLOYEE
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SECTION 2.1 GENERAL DUTIES. Employee shall serve as Executive Vice President
and General Manager for the Atlanta Business Unit (as defined below) of the
Employer and shall report directly to an executive officer of the Employer. In
such capacity, Employee shall do and perform all services, acts or things
consistent within the scope of his employment and with the Employee's skill and
expertise in accordance with the instructions of and policies set by Employer's
Chief Executive Officer, or the Board of Directors. Employee shall perform such
services at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 and at
00000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000 or at such other
location within thirty (30) miles of either of said addresses as may be
designated by Employer. The Employee shall be available to make business trips
both within and outside the United States for the purpose of meeting with and
consulting with other members of the Employer's management, as well as with
present and proposed customers and parties with whom the Employer does business,
all on such reasonable terms, bearing in mind the position of the Employee. For
purposes hereof, "Atlanta Business Unit" shall mean the business operations
formerly of the Seller based in Atlanta, Georgia and Reston, Virginia, which
includes revenues generated from the sale and licensing of software solutions,
web application development and hosting services that are developed and
delivered by the Atlanta Business Unit.
SECTION 2.2 DEVOTION TO EMPLOYER'S BUSINESS.
(a) Employee shall devote his best efforts and entire productive
time, ability and attention to diligently promote and improve the business of
Employer during the Term.
(b) Employee shall not engage in any other business duties or
pursuits whatsoever, or directly or indirectly render any services of a
business, commercial or professional nature to any other person or organization,
whether for compensation or otherwise, without the prior written consent of the
Employer's President & CEO. This Agreement shall not be interpreted to prohibit
Employee from making passive personal investments or conducting private business
affairs if those private business affairs do not materially interfere with the
services required under this Agreement.
SECTION 2.3 CONFIDENTIAL INFORMATION; TANGIBLE PROPERTY; COMPETITIVE
ACTIVITIES.
(a) Employee shall hold in confidence and not use or disclose to
any person or entity without the express written authorization of Employer,
either during the employment term or any time thereafter, secret or confidential
information of Employer, as well as secret or confidential information and
materials received in confidence from third parties with whom Employer has a
business relationship by Employee or Employer. If any confidential information
described below is sought by legal process, Employee will promptly notify
Employer and will cooperate with Employer in preserving its confidentiality in
connection with any legal proceeding.
The parties hereto hereby stipulate that, to the extent it is
not known publicly, the information described in this Section (herein referred
to as "Confidential Information") is important, material and has independent
economic value (actual or potential) from not being generally known to others
who could obtain economic value from its disclosure or use and that any breach
of any terms of this Section 2.3 is a material breach of this Agreement: (i) the
names, buying habits and practices of Employer's customers; (ii) Employer's
sales and marketing strategy and methods and related data; (iii) the names of
Employer's vendors and suppliers; (iv) cost of materials/services; (v) the
prices Employer obtains or has obtained or for which it sells or has sold its
products or services; (vi) development costs; (vii) compensation paid to
employees or other terms of employment; (viii) Employer's past and projected
sales volumes; (ix) confidential information relating to actual products,
proposed products or enhancements of existing products, including, but not
limited to, source code, programming instructions, engineering methods and
techniques relating to such actual or proposed products (or enhancements
thereof), logic diagrams, algorithms, development environment, software
methodologies, and technical specifications for the Employer's web design and
content management software. Confidential Information shall also include all
information which the Employee should reasonably understand is secret or
confidential information, provided the same is clearly designated as
confidential by marking or stamping "Confidential" or similar words on the cover
of such information, or by orally communicating such confidentiality and
confirming such confidentiality in a later written communication. Confidential
Information shall also include all information which the Employee should
reasonably understand is secret or confidential information, if the Employee has
participated in or otherwise been involved with the development, analysis,
invention or origination of such Confidential Information belonging to the
Employer, including, without
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limitation, methods, know-how, formula, customer and supplier lists, personnel
and financial data, business plans, as well as product information, product
plans and product strategies. Notwithstanding the foregoing, "Confidential
Information" does not include any information which (A) is now available to the
public or which becomes available to the public, (B) is or becomes available to
the Employee from a source other than the Employer and such disclosure is not a
breach of a confidentiality agreement with the Employer, or (C) is required to
be disclosed by any government agency or in connection with a court proceeding.
All Confidential Information, as well as all software code,
methodologies, models, samples, tools, machinery, equipment, notes, books,
correspondence, drawings and other written, graphical or electromagnetic records
relating to any of the products of Employer or relating to any of the
Confidential Information of Employer which Employee shall prepare, use,
construct, observe, possess, or control shall be and shall remain the sole
property of Employer and shall be returned by Employee upon termination of
employment.
(b) During his employment hereunder and for twelve (12) months
thereafter, Employee shall not, directly or indirectly, without the consent of
the Employer: (i) invest (except for the ownership of less than 3% of the
capital stock of a publicly held company), or hold a directorship or other
position of authority in any of the Employer's Direct Competitors ("DIRECT
COMPETITORS" defined as: any person or entity, or a department or division of an
entity, whereby more than 25% of the person's or entity's total revenues are
derived from Competitive Services ("COMPETITIVE SERVICES" being defined as
design and development for third parties of: Internet, Intranet and Extranet web
applications, content management or document management software, flash or rich
media development, usability engineering, e-commerce and e-learning
applications, search engine optimization solutions and Web hosting and managed
services), (ii) undertake preparation of or planning for an organization or
offering of Competitive Services, (iii) combine or collaborate with other
employees or representatives of the Employer or any third party for the purpose
of organizing, engaging in, or offering Competitive Services, or (iv) be
employed by, serve as a consultant to or otherwise provide services to (whether
as principal, partner, shareholder, member, officer, director, stockholder,
agent, joint venturer, creditor, investor or in any other capacity), or
participate in the management of a Direct Competitor or participate in any other
business that the Employer may be engaged or has fixed, written plans to
undertake at the date of the termination of this Agreement.
(c) During his employment hereunder and for twelve (12) months
thereafter, Employee shall not, directly or indirectly, without the consent of
the Employer: contact, recruit, solicit, induce or employ, or attempt to
contact, recruit, solicit, induce or employ, any employee, consultant, agent,
director or officer of the Employer to terminate his employment with, or
otherwise cease any relationship with, the Employer; or contact, solicit,
divert, take away or accept business from, or attempt to contact, solicit,
divert or take away, any clients, customers or accounts of the Employer, or any
of the Employer's business with such clients, customers or accounts which were,
directly or indirectly, contacted, solicited or served by Employee, or were
directly or indirectly under his responsibility, while Employee was employed by
the Company, or the identity of which Employee became aware during the term of
his employment.
As used in this agreement the term "client," "customer," or "accounts" shall
include: (i) any person or entity that is a client, customer or account of the
Employer on the date hereof or
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becomes a client, customer or account of the Employer during the covered period;
(ii) any person or entity that was a client, customer or account of the Employer
at anytime during the two-year period preceding the date of Employee's
termination; and (iii) any prospective client, customer or account to whom the
Employer has made a client-specific bona fide proposal or presentation (or
similar offering of services) within a period of 180 days preceding the date of
the termination of Employee's employment.
(d) The covenants of this Section 2.3 shall be construed as
separate covenants covering their subject matter in each of the separate states
in the United States in which Employer (or its Affiliates) transacts its
business. If at any time the foregoing provisions shall be deemed to be invalid
or unenforceable or are prohibited by the laws of the state or place where they
are to be enforced, by reason of being vague or unreasonable as to duration or
place of performance, this Section shall be considered divisible and shall
become and be immediately amended to include only such time and such area as
shall be determined to be reasonable and enforceable by the court or other body
having jurisdiction over this Agreement; and the Employer and the Employee
expressly agree that this Section, as so amended, shall be valid and binding as
though any invalid or unenforceable provision had not been included herein.
(e) The Employee represents and warrants that Employee is free
to enter into this Agreement and to perform each of the terms and covenants
contained herein, and that doing so will not violate the terms or conditions of
any agreement between Employee and any third party.
(f) Nothing in this Section 2.3 shall restrict the Employee from
providing Competitive Services to any organization, including but not limited to
a Direct Competitor, as an employee of or consultant to such organization in the
event Employee's employment by Employer is terminated without cause or for good
reason in accordance with the terms of Section 5.4 hereof.
SECTION 2.4 INVENTIONS AND ORIGINAL WORKS.
(a) Subject to Section 2.4(b) below, the Employee agrees that he
will promptly make full written disclosure to Employer, will hold in trust for
the sole right and benefit of Employer, and hereby assigns to Employer all of
his right, title and interest in and to any and all inventions (and patent
rights with respect thereto), original works of authorship (including all
copyrights with respect thereto), developments, improvements or trade secrets
which Employee may solely or jointly conceive or develop or reduce to practice,
or cause to be conceived or developed or reduced to practice, while performing
his duties under this Agreement.
Employee acknowledges that all original works of authorship
relating to the business of Employer which are made by him (solely or jointly
with others) within the scope of his duties under this Agreement and which are
protectable by copyrights are "works made for hire" as that term is defined in
the United States Copyright Act (17 U.S.C.A., Section 101), and that Employee is
an employee as defined under that Act. Employee further agrees from time to time
to execute written transfers to Employer of ownership of specific original works
of authorship (and all copyrights therein) made by Employee (solely or jointly
with others) which
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may, despite the preceding sentence, be deemed by a court of law not to be
"works made for hire" in such form as is acceptable to Employer in its
reasonable discretion.
(b) The parties agree that the "business of the Employer" for
the purposes of this Section 2.4 is the business of INTERNET, INTRANET AND
EXTRANET WEB APPLICATIONS, CONTENT MANAGEMENT OR DOCUMENT MANAGEMENT SOFTWARE,
FLASH OR RICH MEDIA DEVELOPMENT, USABILITY ENGINEERING, E-COMMERCE AND
E-LEARNING APPLICATIONS, SEARCH ENGINE OPTIMIZATION SOLUTIONS AND WEB HOSTING
AND MANAGED SERVICES. Employee shall provide to Employer, and attach hereto as
Exhibit 2.4(b), a list identifying and describing in reasonable detail all
inventions (and patent rights with respect thereto), original works of
authorship (including all copyrights with respect thereto), developments,
improvements, concepts or trade secrets which Employee has solely or jointly
conceived or developed or reduced to practice, or caused to be conceived or
developed or reduced to practice to date, and other intellectual property of the
Employee. For the avoidance of doubt, Employee will identify on Exhibit 2.4(b)
with sufficient detail any intellectual property belonging to the Employee prior
to the date hereof, including that related to the business of the Employer
(collectively the "Employee's Personal Intellectual Property"). Employer
acknowledges and agrees that the provisions of Section 2.4(a) shall not apply to
Employee's Personal Intellectual Property or to any inventions (and patent
rights with respect thereto), original works of authorship (including all
copyrights with respect thereto), developments, improvements, concepts or trade
secrets conceived of or developed by Employee during the term of this Agreement
that is not Employer Intellectual Property (as defined in Section 4.15 of the
Agreement and Plan of Merger among Employer, Employee and Objectware (the
"Merger Agreement").
SECTION 2.5 MAINTENANCE OF RECORDS. Except with respect to the Intellectual
Property for which the Employer has no rights, Employee agrees to keep and
maintain reasonable written records of all inventions, original works of
authorship, trade secrets developed or made by him (solely or jointly with
others) during the employment term. Employee also agrees to make and maintain
adequate and reasonable written records customarily maintained by corporate
managers, including, without limitation, lists and telephone numbers of persons
and companies he has contacted during his engagement by the Employer.
Immediately upon the Employer's request and promptly upon termination of the
Employee's engagement with the Employer, the Employee shall deliver to the
Employer all written records as described in this Section, together with all
memoranda, notes, records, reports, photographs, drawings, plans, papers,
computer storage media, Confidential Information or other documents made or
compiled by the Employee or made available to the Employee during the course of
his engagement by the Employer, and any copies or abstracts thereof, whether or
not of a secret or confidential nature, and all of such records, memoranda or
other documents shall, during and after the engagement of the Employee by the
Employer, be and shall be deemed to be the property of the Employer.
SECTION 2.6 OBTAINING LETTERS PATENT AND COPYRIGHT REGISTRATION. During the
employment term hereunder, Employee agrees to assist Employer, at Employer's
expense, to obtain United States or foreign letters patent, and copyright
registrations (as well as any transfers of ownership thereof) covering
inventions and original works of authorship assigned hereunder to Employer. Such
obligation shall continue beyond the termination of this Agreement for a
reasonable period of time not to exceed one (1) year subject to Employer's
obligation to compensate Employee at such rates as may be mutually agreed upon
by the Employer and Employee at the time, but not exceeding the annualized rate
provided for in Section 4.1 of this Agreement, and reimbursement
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to Employee of all expenses incurred.
If Employer is unable for any reason whatsoever, including
Employee's mental or physical incapacity to secure Employee's signature to apply
for or to pursue any application for any United States of foreign letters,
patent or copyright registrations (or any document transferring ownership
thereof) covering inventions or original works or authorship assigned to
Employer under this Agreement, Employee hereby irrevocably designates and
appoints Employer and its duly authorized officers and agents as Employee's
agent and attorney-in-fact to act for and in his behalf and stead to execute and
file any such applications and documents and to do all other lawfully permitted
acts to further the prosecution and issuance of letters patent or copyright
registrations or transfers thereof with the same legal force and effect as if
executed by Employee. This appointment is coupled with an interest in and to the
inventions and works of authorship and shall survive Employee's death or
disability. Employee hereby waives and quitclaims to Employer any and all claims
of any nature whatsoever which Employee now or may hereafter have against third
parties for infringement of any patents or copyrights resulting from or relating
to any such application for letters, patent or copyright registrations assigned
hereunder to Employer.
ARTICLE 3
COMPENSATION OF EMPLOYEE
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SECTION 3.1 ANNUAL SALARY. As compensation for his services hereunder,
Employee shall be paid a salary at the rate of One Hundred Fifty Thousand and
00/100 Dollars ($150,000.00) per year from the Commencement Date ("Base
Salary"). Base Salary shall be paid in equal installments not less frequently
than twice each month.
SECTION 3.2 ANNUAL BONUS. The Employee shall be eligible to be paid an
annual bonus (the "Bonus") of up to $100,000, earned and payable quarterly in
accordance with the terms set forth on Exhibit 3.2 attached hereto. Exhibit 3.2
shall be amended on an annual basis by mutual agreement of the Employer and the
Employee based on the Atlanta Business Unit's annual operating plan as approved
by Employer's Chief Executive Officer. Notwithstanding anything in this Section
3.2 or Exhibit 3.2 to the contrary, Employer shall pay the two quarterly Bonus
payments of $25,000 each for the first two completed calendar quarters after the
Commencement Date irrespective of whether the operating objectives set forth on
Exhibit 3.2 are achieved for such quarters. In addition to the Bonus payments
set forth in Exhibit 3.2, the Employer agrees to pay to the Employee the pro
rated portion of $8,333 per month beginning on the Commencement Date for the
months of November and December 2006. The Base Salary and Bonus of Employee
shall be reviewed annually and may be increased from time to time by Employer to
reflect the Employee's performance.
SECTION 3.3 TAX WITHHOLDING. Employer shall have the right to deduct or
withhold from the compensation due to Employee hereunder any and all sums
required for federal income and social security taxes and all state or local
taxes now applicable or that may be enacted and become applicable in the future,
for which withholding is required by law.
SECTION 3.4 INCENTIVE STOCK OPTIONS. The Employer may, at the Employer's
sole discretion, issue Incentive Stock Options to the Employee. All stock
options granted to the Employee shall
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be subject to a stock option agreement, a stock option plan and such other
restrictions as are generally applicable to stock options issued to employees of
the Employer, as each may be amended from time to time.
ARTICLE 4
EMPLOYEE BENEFITS
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SECTION 4.1 ANNUAL VACATION. Employee shall be entitled to twenty (20)
business days of paid vacation during each year of this Agreement. Employee may
be absent from his employment for vacation at such times as are reasonably
approved by the Employer's President and CEO. Unused vacation shall not be
carried over into the next year.
SECTION 4.2 BENEFITS. Employee shall be eligible to participate in any and
all benefit plans provided by Employer, including health, disability and life
insurance coverage, as are provided to other Executive Vice Presidents and
General Managers of Employer.
SECTION 4.3 BUSINESS EXPENSES. Employer shall reimburse Employee for all
appropriate expenses for travel and entertainment by Employee for legitimate
business purposes, provided that they are approved in writing by the person to
whom the Employee reports, and provided that Employee furnishes to Employer
adequate records and documentary evidence for the substantiation of each such
expenditure, as required by the Internal Revenue Code of 1986, as amended.
ARTICLE 5
TERMINATION OF EMPLOYMENT
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SECTION 5.1 TERMINATION. Employee's employment hereunder may be terminated
by Employee or Employer as herein provided, without further obligation or
liability, except as expressly provided in this Agreement.
SECTION 5.2 RESIGNATION, RETIREMENT, DEATH OR DISABILITY. Employee's
employment hereunder shall be terminated at any time by Employee's resignation,
or by Employee's retirement, death, or his inability to perform the essential
functions of his position under this Agreement, with or without reasonable
accommodation, for a total of ninety (90) days or more in any continuous two
hundred (200) day period because of a substantial physical or mental impairment
("Disability"). Employer shall not be liable for the payment of Base Salary or
Bonus (other than for accrued Base Salary or Bonus payments) during any period
of Disability, though benefits shall continue to accrue.
SECTION 5.3 TERMINATION FOR CAUSE. Employee's employment hereunder may be
terminated for Cause. "Cause" is conduct, as determined in good faith by the
Chief Executive Officer or the Board of Directors of Employer involving one or
more of the following: (i) gross misconduct by the Employee; or (ii) the willful
disregard of the rules or policies of the Company; or (iii) the material
violation of any noncompetition or nonsolicitation covenant with, or assignment
of inventions obligation to, the Company; or (iv) the conviction of the Employee
of a felony; or (v) the commission of an act of embezzlement, fraud or breach of
fiduciary duty which results in loss, damage or injury to the Company; or (vi)
engaging in an act, omission or pattern of behavior which, in the reasonable
opinion of the Company, impugns the reputation of the
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Company or which creates an environment materially non-conducive to the growth
and development of the Company, provided the Company provides written notice to
the Employee that such act, omission or pattern of behavior may be the basis for
termination and the Employee engages in similar acts, omissions or behavior
after receipt of such notice, or (vi) the generation of net operating losses (as
defined in accordance with generally accepted accounting principles) by the
Atlanta Business Unit for three (3) consecutive quarters and the
underperformance of the Atlanta Business Unit to a majority of Employer's other
business units (as measured by operating income) during such consecutive three
(3) quarter period; or (vii) the failure of the Employee to perform in a
material respect his employment obligations as set forth in this Agreement
without proper cause and the continuation thereof during a period of 30 days
within which Employee is given an opportunity to commence rehabilitation with
respect thereto, after delivery to Employee of written notice from the Employer
specifying in reasonable detail the nature of such failure. In making such
determination, the Chief Executive Officer or the Board of Directors shall act
in good faith. For purposes of this Section, no act, or failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Employer.
SECTION 5.4 TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON.
Employee's employment hereunder may be terminated without Cause upon ten (10)
business days' notice for any reason. Employee's employment may be terminated by
Employee at any time for Good Reason.
For purposes of this Agreement, "Good Reason" shall mean:
(a) failure of the Employer to continue Employee in the position
of Executive Vice President and General Manager for the Atlanta Business Unit of
the Employer; (b) material diminution in the nature or scope of the Employee's
responsibilities, duties or authority (provided, however, any general diminution
of the business of the Employer shall not constitute "Good Reason"); (c)
material failure of the Employer to provide the Employee the compensation and
benefits in accordance with the terms of Articles 3 and 4 hereof; (d) change in
reporting structure such that Employee reports to any person other than an
executive officer of Employer; or (e) the requirement by the Employer that
Employee relocate his principal place of employment to a location more than
thirty (30) miles from Norcross, Georgia.
SECTION 5.5 EXPIRATION. Employee's employment hereunder shall be terminated
upon expiration of the Initial Term or any Succeeding Term as provided in
Sections 1.1 and 1.2, unless the parties agree that the Employee's employment
shall become "at will."
SECTION 5.6 NOTICE OF TERMINATION. Any termination of the Employee's
employment by the Employer or by the Employee (other than termination by reason
of resignation, retirement, or death), shall be communicated by written Notice
of Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall include the specific
termination provision in this Agreement relied upon, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employee's employment under the provision so indicated.
SECTION 5.7 DATE OF TERMINATION. The "Date of Termination" shall be: (a) if
the Employee's
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employment is terminated by his death, the date of her death; (b) if the
Employee's employment is terminated by reason of Employee's disability, thirty
(30) days after Notice of Termination is given; (c) if the Employee's employment
is terminated for Cause, the date the Notice of Termination is given or after if
so specified in such Notice of Termination (including but not limited to the end
of any cure period as specified in Section 5.3(vii) hereof); (d) if the
Employee's employment is terminated for any other reason, the date on which a
Notice of Termination is given.
ARTICLE 6
PAYMENTS TO EMPLOYEE UPON TERMINATION
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SECTION 6.1 DEATH, DISABILITY OR RETIREMENT. In the event of Employee's
retirement, death or Disability, all benefits generally available to Employer's
employees as of the date of such an event shall be payable to Employee or
Employee's estate, in accordance with the terms of any plan, contract,
understanding or arrangement forming the basis for such payment, and in any case
specifically including any and all accrued Base Salary and Bonus. Employee shall
be entitled to such other payments as might arise from any other plan, contract,
understanding or arrangement between Employee or Employer at the time of any
such event.
SECTION 6.2 TERMINATION FOR CAUSE OR RESIGNATION. In the event Employee is
terminated by Employer for Cause or Employee resigns (other than a Termination
by Employee for Good Reason), neither Employer nor any affiliate shall have any
further obligation to Employee under this Agreement, except for payment to
Employee of any and all accrued Base Salary and Bonus, provision of COBRA health
care continuation and otherwise as may be expressly required by law. No such
termination of Employee's employment for Cause or upon Employee's resignation
shall affect Employee's right to receive earn-out payments pursuant to the
Merger Agreement.
SECTION 6.3 TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON. Subject
to other provisions in this Article 6 to the contrary, upon the occurrence of a
termination without Cause by Employer or a Termination for Good Reason by
Employee, Employer shall:
(a) Pay to Employee any and all accrued Base Salary, vacation
and Bonus (and, for removal of doubt, any such Bonus for a fiscal quarter that
has been completed at the time of Employee's termination of employment shall be
deemed to be accrued for purposes of all sections of this Article 6, regardless
of whether the amount of such Bonus has been determined or payment been made as
of the date of termination of employment);
(b)(i) In the event such termination occurs at any time prior to
the completion of three years following the Commencement Date, pay to Employee,
or in the event of Employee's subsequent death, to Employee's surviving spouse,
or if none, to Employee's estate, as severance pay, $750,000; or (ii) in the
event such termination occurs at any time after the completion of three years
following the Commencement Date, pay to Employee, or in the event of Employee's
subsequent death, to Employee's surviving spouse, or if none, to Employee's
estate, as severance pay, the monthly rate of Base Salary payable under this
Agreement for a period of one year plus an amount equal to the aggregate
quarterly Bonus payments paid to Employee during the four (4) calendar quarters
prior to the Date of Termination;
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(c) Cause any stock options issued to Employee which have not
lapsed and which are not otherwise exercisable to be accelerated so as to
immediately be exercisable by Employee, and if not otherwise provided in the
applicable option grant, extend the exercise period with respect to such options
to a date that is ninety (90) days following the Date of Termination;
(d)Pay the Employer's portion of the COBRA health insurance
continuation premium in the same amount Employer contributed for Employee's
health insurance as of the date of Employee's termination through the remaining
period of months of the Initial Term or Succeeding Term but in no event fewer
than six (6) months and thereafter provide COBRA health care continuation at
Employee's cost (provided that the Employee makes the required premium
contributions); provided, however, that Employer's obligation to contribute its
portion of the COBRA insurance premium will cease immediately in the event
Employee becomes employed following termination. Employee agrees to notify
Employer immediately regarding such new employment; and
(e)Provide to Employee such other payments or benefits as may be
expressly required by law.
ARTICLE 7
GENERAL PROVISIONS
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SECTION 7.1 NOTICES. Any notices to be given hereunder by either party to
the other shall be in writing and may be transmitted by personal delivery or by
mail, first class, postage prepaid, or by electronic facsimile or email
transmission (with verification of receipt). Mailed notices shall be addressed
to the parties at their respective addresses set forth herein. Each party may
change that address by written notice in accordance with this section. Notices
delivered personally shall be deemed communicated as of the date of actual
receipt. Mailed notices shall be deemed communicated as of one day after the
date of mailing.
SECTION 7.2 GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by, construed and interpreted in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its principles of conflicts of laws. Any action
or proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement or any of the transactions contemplated hereby, shall be
brought against any of the parties in the courts of the Commonwealth of
Massachusetts, and each of the parties irrevocably submits to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding, waives any objection to venue laid therein, agrees
that all claims in respect of any action or proceeding shall be heard and
determined only in any such court and agrees not to bring any action or
proceeding arising out of or relating to this Agreement or any transaction
contemplated hereby in any other court. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world.
SECTION 7.3 ATTORNEY'S FEES AND COSTS. If either party commences any action
at law or in equity against the other to enforce the terms of this Agreement and
prevails in such action, the losing party shall reimburse the prevailing party
its reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which such prevailing party may be entitled. This provision
shall be construed as applicable to the entire contract.
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SECTION 7.4 ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the subject matter contained herein and contains all of the covenants and
agreements between the parties with respect to that subject matter. Each party
to this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding on either party.
SECTION 7.5 MODIFICATION. Any modification of this Agreement will be
effective only if it is in writing and signed by the Employee and properly
authorized by Employer's Board of Directors and signed by an officer of
Employer.
SECTION 7.6 EFFECT OF WAIVER. The failure of either party to insist on
strict compliance with any of the terms, covenants or conditions of this
Agreement by the other party shall not be deemed a waiver of that term, covenant
or condition, nor shall any waiver or relinquishment of any right or power at
any one time or times be deemed a waiver or relinquishment of that right or
power for all or any other times.
SECTION 7.7 PARTIAL INVALIDITY. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
SECTION 7.8 ASSIGNMENT. The rights and obligations of the parties hereto
shall inure to the benefit of, and shall be binding upon, the successors and
assigns of each of them; provided, however, that the Employee shall not, during
the continuance of this Agreement, assign this Agreement without the previous
written consent of the Employer, and provided, further, that nothing contained
in this Agreement shall restrict or limit the Employer in any manner whatsoever
from assigning any or all of its rights, benefits or obligations under this
Agreement to any successor corporation or entity or to any affiliate of the
Employer without the necessity of obtaining the consent of the Employee.
"Affiliate" as used throughout this Agreement means any person or entity which
directly or indirectly controls, or is controlled by, or is under common control
with, the Employer.
SECTION 7.9 SPECIFIC PERFORMANCE. If there is any violation of the
Employee's obligations herein contained, the Employer, or any of its Affiliates,
shall have the right to specific performance in addition to any other remedy
which may be available at law or at equity.
SECTION 7.10 SURVIVAL OF SECTIONS. The provisions of Sections 2.3, 2.4, 2.5
and 2.6 shall continue in force so long as the Employee remains employed by the
Employer or any Affiliate of the Employer, whether under this Agreement or not,
and whether as a consultant or not, and shall survive any termination of
employment under this Agreement for the periods specified therein.
Notwithstanding the foregoing, the provision of Sections 2.5 shall survive for
only three years following any termination of employment under this Agreement.
SECTION 7.11 INJUNCTIVE RELIEF/ACKNOWLEDGEMENT. Employee understands and
acknowledges that the Employer's proprietary information, inventions and good
will are of a special, unique, unusual, extraordinary character which gives them
a peculiar value, the loss of which cannot be reasonably compensated by damages
in an action at law. Employee understands and acknowledges that, in
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addition to any and all other rights or remedies that the Employer may possess,
Employer shall be entitled to injunctive and other equitable relief, without
posting a bond, to prevent a breach or threatened breach of this Agreement
(and/or any provision thereof) by Employee. In the event that a court of
appropriate jurisdiction awards the Company injunctive or other equitable relief
due to Employee's breach of the terms of this Agreement, Employee agrees that
the time periods provided in Article 2.3 of this Agreement shall be tolled for
the period during which Employee is in breach of the Agreement, and shall resume
once Employee complies with such injunctive or other equitable relief.
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as an instrument under seal at Norcross, Georgia
on this __ day of ______, 2007.
EMPLOYER: EMPLOYEE:
BRIDGELINE SOFTWARE, INC.
By: _______________________________ _______________________________
Xxxxxx X. Xxxxxx Xxxx X. Xxxx
President & CEO
Address: ______________________ Address: ______________________
_______________________________ _______________________________
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EXHIBIT 2.4(b)
--------------
Employee's Personal Intellectual Property
None.
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EXHIBIT 3.2
-----------
XXXX XXXX, INCENTIVE BONUS COMPUTATION
1. ONE-HALF ($12,500) OF THE BONUS SHALL BE BASED UPON THE ACHIEVEMENT OF
QUARTERLY GROSS PROFIT OBJECTIVES SET FORTH BELOW:
-------------------------- -----------------------------------------------------
QUARTER ENDING GROSS PROFIT OBJECTIVES FOR ATLANTA BUSINESS UNIT
-------------------------- -----------------------------------------------------
MARCH 31, 2007 $560,000*
-------------------------- -----------------------------------------------------
JUNE 30, 2007 $570,000*
-------------------------- -----------------------------------------------------
SEPTEMBER 30, 2007 $580,000
-------------------------- -----------------------------------------------------
DECEMBER 31, 2007 $590,000
-------------------------- -----------------------------------------------------
2. ONE-HALF ($12,500) OF THE BONUS SHALL BE BASED UPON THE ACHIEVEMENT OF
QUARTERLY OPERATING INCOME OBJECTIVES SET FORTH BELOW:
-------------------------- -----------------------------------------------------
QUARTER ENDING OPERATING INCOME OBJECTIVES FOR ATLANTA BUSINESS UNIT
-------------------------- -----------------------------------------------------
MARCH 31, 2007 $250,000*
-------------------------- -----------------------------------------------------
JUNE 30, 2007 $260,000*
-------------------------- -----------------------------------------------------
SEPTEMBER 30, 2007 $270,000
-------------------------- -----------------------------------------------------
DECEMBER 31, 2007 $280,000
-------------------------- -----------------------------------------------------
* BONUS TO BE PAID IRRESPECTIVE OF WHETHER OBJECTIVES HAVE BEEN SATISFIED.
"GROSS PROFIT" SHALL BE CALCULATED IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES CONSISTENTLY APPLIED ("GAAP").
"OPERATING INCOME" SHALL BE CALCULATED IN ACCORDANCE WITH GAAP, HAVING TAKEN
INTO ACCOUNT DEDUCTIONS FOR CORPORATE, GENERAL, ADMINISTRATIVE AND MARKETING
EXPENSES ALLOCATED TO THE ATLANTA BUSINESS UNIT ON THE SAME BASIS AS ALL OTHER
OPERATING UNITS OF THE EMPLOYER; PROVIDED, HOWEVER, THAT SUCH EXPENSES CANNOT
EXCEED TWELVE PERCENT (12%) OF THE ATLANTA BUSINESS UNIT'S GROSS REVENUES.
3. ALL BONUS PAYMENTS SHALL BE MADE ON OR BEFORE THE 45TH DAY AFTER THE
END OF EACH FISCAL QUARTER DURING THE TERM OF THIS AGREEMENT.
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