EX-10.44
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of August 28,
2000, between Adaytum, Inc. (the "Company"), a Delaware corporation, and Daniel
Mayleben, (the "Employee"), a resident of Minnesota, provides as follows:
WHEREAS, the Company seeks to employee the Employee, subject to the terms
and conditions of this Agreement;
WHEREAS, the Employee seeks to obtain employment with the Company;
WHEREAS, the Employee and the Company are desirous of setting forth the
terms and conditions of their employment relationship in this Agreement;
WHEREAS, at some point in the future, the Company's ownership may change,
if the Company elects to convert from a privately held corporation to a publicly
held corporation;
WHEREAS, the Company wants to provide certain key employees of the
Company, including the Employee, with a higher level of job security than
otherwise might exist, given the potential ownership changes at the Company;
WHEREAS, the Company believes that providing certain key employees of the
Company, including the Employee, with a higher level of job security, will
redound to the benefit of the Company;
NOW, THEREFORE, the Company and the Employee, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
mutually agree and covenant as follows:
ARTICLE I. DEFINITIONS
The following terms shall have the meanings set forth below, unless the
context clearly requires otherwise. Where appropriate, additional terms are
defined elsewhere in this Agreement.
1.1 "Agreement" means this Employment Agreement, and any amendments
hereto (mutually agreed upon by the parties, and set forth in
writing).
1.2 "Base Salary" means the annual compensation payable to the
Employee, as set forth at Paragraph 4.1 of this Agreement, and as
modified periodically following the execution of this Agreement.
1.3 "Associated Company" means any company other than Adaytum, Inc.,
which is as of the date of this Agreement a subsidiary of the
Adaytum Group (Adaytum KPS Software Limited, Insight Systems ApS,
ET CETERA).
1.4 "Board" means the Board of Directors of the Company.
1.5 "Company" means Adaytum, Inc.
1.6 "Confidential Information" means information that is proprietary
to the Company or proprietary to others and entrusted to the
Company, whether or not trade secrets. Confidential Information
includes information proprietary to the Company's clients,
customers and business contacts, and entrusted to the Company.
Confidential Information includes, but is not limited to,
information relating to business plans and to business as
conducted or anticipated to be conducted, and to past, current or
anticipated products. Confidential Information also includes,
without limitation, information concerning research, development,
purchasing, accounting, marketing, selling and services. All
information that Employee has a reasonable basis to consider
confidential is Confidential Information, whether or not
originated by Employee and without regard to the manner in which
Employee obtains access to this and any other proprietary
information. Confidential information does not include information
that is otherwise readily available to the public other than by a
breach of this Agreement or information that was known to the
Employee prior to entering into this Agreement.
1.7 "Employee" means Daniel Mayleben.
1.8 "Plan" means any bonus or incentive compensation agreement, plan,
program, policy or arrangement sponsored, maintained or
contributed to by the Company, to which the Company is a party or
under which employees of the Company are covered, including,
without limitation, any stock option, restricted stock or any
other equity-based compensation plan, annual or long-term
incentive (bonus) plan, and any employee benefit plan, such as a
profit sharing, medical, dental, disability, accident, life
insurance, automobile allowance, perquisite, fringe benefit,
personal time off,
severance or any other agreement, plan, program, policy or
arrangement intended to benefit employees or executive officers of
the Company.
1.9 "Inventions" means ideas, improvements and discoveries, whether or
not such are patentable or copyrightable, and whether or not in
writing or reduced to practice.
1.10 "Works of Authorship" means writings, drawings, software,
semiconductor mask works, and any other works of authorship,
whether or not such are copyrightable.
ARTICLE II. EMPLOYMENT, REPRESENTATIONS, DUTIES, AND OBLIGATIONS.
2.1 TITLE/REPORTING RESPONSIBILITIES: The Company will employ the
Employee in the capacity of Chief Financial Officer. The Employee
will report to the Company's Chief Executive Officer, Guy
Haddleton. The Company, however, reserves the right to alter the
Employee's title and/or modify the reporting relationship at any
time in the future.
2.2 EMPLOYEE'S QUALIFICATIONS AND REPRESENTATIONS: The Employee
warrants and confirms, as a condition of this Agreement and his
employment with the Company, that the information previously
provided to the Company and contained in any resume, CURRICULUM
VITAE or other writing furnished by the Employee, as well as in
any oral representations made by the Employee, regarding the
Employee's qualifications (including, but not limited to,
educational background, degrees, job history, ET CETERA) were
truthful, accurate, and not misleading. The Employee further
warrants that he is free to enter into and perform this Agreement
and that by doing so the Employee will not be in breach of any
obligation to any third party, including, but not limited to, any
former employer of Employee. The Employee further warrants that
he has disclosed to the Company any obligations to third parties,
including, but not limited to, any former employer of Employee
which may limit his ability to enter into and/or perform this
Agreement, and that he has sought and received independent legal
advice that he will not breach any such obligation by entering
into or performing this Agreement.
2.3 DUTIES: During his employment by the Company, Employee agrees to
devote reasonable attention and time during normal business hours
to the
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business and affairs of the Company, to the extent necessary to
discharge the responsibilities assigned to Employee, and, to use
Employee's best efforts to perform faithfully and efficiently such
responsibilities.
During his employment with the Company, Employee shall:
(a) promptly and faithfully comply with all directions given by
the Company;
(b) provide to the Company such information relating to its
affairs as it may from time to time request; and,
(c) comply with the Company's policies and procedures;
provided, that to the extent such policies and procedures
are inconsistent with this Agreement, the provisions of
this Agreement shall control.
Further, during his employment with the Company, the Employee
shall not:
(d) directly or indirectly, be in any manner engaged, concerned
or interested in any other trade, business, profession or
occupation whatsoever, except with the prior written
consent of the Company's Chief Executive Officer and
subject to any terms and conditions which the Chief
Executive Officer imposes; and,
(e) without the prior authority of the Chief Executive Officer;
(i) commit the Company to any contract exceeding
$25,000;
(ii) pledge the credit of the company or grant any
security charge, lien or encumbrance over any or all
of its assets;
(iii) bind or purport to bind the Company in guaranteeing
or acting as surety for the debt or liability of any
other person;
(iv) cause the Company to enter into any commitment,
contract or arrangement otherwise than in the normal
course of business or which is outside the scope of
his normal duties or which is of an unusual onerous
or long-term nature.
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2.4 TRAVEL: Employee shall travel both nationally and internationally
as Employee's duties may reasonably demand, but the Employee shall
not be obliged to reside outside the State of Minnesota, unless
mutually agreed to by the Employee and the Company.
2.5 CERTAIN PROPRIETARY INFORMATION: If Employee possesses any
proprietary information of another person or entity as a result of
a prior employment or other relationship, Employee shall honor any
legal obligation that Employee has with that person or entity with
respect to such proprietary information. Employee warrants that
he has disclosed to the Company the nature of any proprietary
information in Employee's possession as a result of prior
employment, and that Employee has sought and received independent
legal advice that Employee will not breach any legal obligation to
refrain from disclosure or use of such proprietary information by
entering into or performing this Agreement.
ARTICLE III. EMPLOYMENT AT WILL.
3.1 EMPLOYMENT AT WILL: The Company and the Employee understand and
agree that the Employee's employment with the Company shall be "at
will." The Company and the Employee understand and agree that the
phrase "at will" is intended to mean that either the Company or
the Employee may end their employment relationship at any time,
for any reason, with or without cause, and with or without notice.
The Company and the Employee agree that this Agreement is not
intended to be and should not be construed as an employment
contract that determines or affects the duration of the Employee's
employment, or any other terms or conditions of the Employee's
employment, except for those specifically set forth herein.
ARTICLE IV. COMPENSATION, BENEFITS, EXPENSES.
4.1 BASE SALARY: During the term of Employee's employment under this
Agreement, the Company shall pay Employee a Base Salary at an
annual rate of One Hundred and Seventy Five Thousand and No /100
Dollars ($175,000.00), which is the equivalent of Fourteen
Thousand, Five Hundred and Eighty Three and No/100 Dollars
($14,583.00) per month, until such time that a higher annual rate
is approved by the Chief Executive Officer. Such Base Salary will
be paid in equal regular periodic payments in
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accordance with the Company's regular payroll practices.
Employee's base salary will be reviewed annually. If Employee's
Base Salary is increased from time to time during Employee's
employment under this Agreement, the increased amount shall become
the Base Salary for the remainder of Employee's employment under
this Agreement.
4.2 HIRING BONUS: Employee shall receive a one-time hiring bonus of
Thirty Five Thousand and No/100 Dollars ($35,000), less all
applicable state and federal withholdings. The hiring bonus will
be paid to the Employee through our normal payroll practices after
you have started employment with the Company.
4.3 BONUS: In addition to Employee's other remuneration hereunder,
the Employee may receive a bonus to be computed and paid by the
Company in accordance with the Schedule attached hereto as
Exhibit A. The Company may terminate any bonus scheme at any time
without replacing it with any other scheme or incentive; further,
the amount or nature of any bonus or scheme determined by the
Board for any period shall not be any indication or requirement
that any similar bonus or scheme will be applicable to any
subsequent period. If the Employee's employment with the Company
is terminated for any reason other than cause, the Employee may be
eligible for a pro rata bonus corresponding to the number of
months the Employee worked during the calendar year the employment
relationship ended. The Company retains sole discretion to
determine whether the Employee shall receive such a bonus. The
Company will have no bonus obligation to the Employee following
the calendar year in which the Employee's employment ended.
4.4 BENEFIT PLANS: At the sole discretion of the Board, in addition
to Employee's other remuneration hereunder, the Employee may be
entitled to participate in such Plans as the Board shall from time
to time establish. At the present time, this includes the
Company's medical, dental, life and disability insurance coverage,
and 401-K plans, as set forth in the Company's standard employee
benefits plans. Due to the waiting period set forth in the
Company's medical coverage plan, Employee will not be eligible to
participate in that plan until the first of the month following 30
days of employment.
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4.5 STOCK OPTIONS: Employee shall be entitled to receive 200,000 share
options upon executing this Agreement. Employee's rights to these
share options will be governed exclusively by the terms and
conditions of the applicable Company stock option plans subject to
the following exception: a) the Company will modify the vesting
schedule for the share options to three (3) years, with the Share
Options vesting in equal monthly installments of approximately
5,555 shares for each full calendar month of Employee's employment
with the Company.
4.6 PERSONAL TIME OFF (PTO): The Company's PTO year runs from January
1st to December 31st and the Employee may take personal time off
totaling twenty-five (25) working days in each PTO year (in
addition to public holidays). Personal time off should be taken
at such times convenient to the Company as may be agreed between
Employee and the Company and in accordance with any policies as to
personal time off from time to time established by the Company.
(a) ACCRUAL: PTO entitlement will accrue from month to month
during each PTO year and the entitlement to accrued PTO pay
upon termination will be in proportion to the period of
employment during the year. Upon termination, the Employee
shall reimburse the Company for PTO taken in excess of
Employee's accrued entitlement.
(b) NO CARRY-FORWARD: The Employee may not, without the written
consent of the Company, carry forward any unused PTO
entitlement to any subsequent year.
(c) ILLNESS: If Employee is unable to perform Employee's duties
hereunder because of physical or mental illness, bodily
injury or disease, the Company will deduct the days taken
as absent from the total of PTO days available for that PTO
year.
4.7 BUSINESS EXPENSES: The Company shall reimburse the Employee (in
accordance with the relevant policies established by the Company
from time to time) for all travel, hotel and other out-of-pocket
expenses properly and reasonably incurred and documented,
exclusively for and in the course of performing Employee's duties.
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ARTICLE V. TERMINATION.
5.1 TERMINATION: As set forth in ARTICLE III above, the employment
relationship between the Company and Employee is at will. Thus,
the Company or the Employee may terminate their employment
relationship at any time, with or without notice, for any reason
or no reason, whether with or without cause. As set forth
elsewhere in this Agreement, depending on the circumstances of the
termination of employment, the termination may not relieve the
parties of some of their contractual obligations to each other.
The question of whether specific obligations survive the
termination of the employment relationship is addressed elsewhere
in this Agreement.
5.2 TERMINATION IN THE EVENT OF DEATH: The Company's obligations to
the Employee pursuant to this Agreement shall terminate in the
event of the Employee's death. Nothing in this Paragraph,
however, shall supercede any obligations the Company may owe to
the Employee's estate and/or family members, as specifically set
forth in any of the health, benefit or insurance plans or programs
in which the Employee is enrolled at the time of his death. Any
vested options due to the Employee shall survive the Employee's
death.
5.3 TERMINATION IN THE EVENT OF DISABILITY: The Company's obligations
to the Employee pursuant to this Agreement shall terminate if the
Employee becomes disabled. As used in this Paragraph, "disabled"
means that the Employee cannot perform the essential functions of
the job, with or without a reasonable accommodation. The Company
must receive written documentation regarding the Employee's
disability from a physician mutually agreed to by both the Company
and Employee. Obligations that survive disability pursuant to
Company policies, including the Stock Option Plan and other
applicable policies, should continue after disability.
5.3.1 "DISABILITY" DEFINED: As used in this Agreement,
"disability" or "disabled" means that the Employee has a
mental or physical condition that renders him unable to
perform the essential functions of his job, with or without
reasonable accommodation, during ninety (90) or more days
within any one hundred and eighty (180) day period.
5.4 TERMINATION FOR CAUSE: The Company's obligations to the Employee
pursuant to this Agreement shall terminate if the Board of
Directors, or the
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Company's Chief Executive Officer, elects to terminate this
Agreement for "cause" and notifies the Employee in writing of that
decision. A termination for "cause" will affect the severance
benefits for which the Employee otherwise may have been eligible,
as set forth further below.
5.4.1 "CAUSE" DEFINED: As used in this Agreement, the word
"cause" means the following:
(i) The Employee has engaged in willful and/or material
misconduct, including, but not limited to, willful
and material failure to perform the Employee's
duties and responsibilities as an officer or
employee of the Company;
(ii) The Employee has committed fraud, misappropriation
or embezzlement, in connection with the Company's
business, committed an act (or acts) of personal
dishonesty relevant to the duties and
responsibilities of the Employee, or committed any
willful and deliberate misconduct that is materially
and/or demonstrably injurious to the Company;
(iii) The Employee has been convicted of or has pleaded
NOLO CONTENDERE to criminal misconduct (exclusive of
misdemeanor offenses);
(iv) The Employee has breached his obligations to the
Company as set forth in this Agreement; and,
(v) The Employee has failed to perform his duties to the
reasonable satisfaction of the Employer and the
Chief Executive Officer of the Company and/or the
Board of Directors.
5.5 TERMINATION WITHOUT CAUSE: The Company's obligations to the
Employee pursuant to this Agreement shall terminate if the Board
of Directors, or the Company's Chief Executive Officer, elects to
terminate this Agreement without "cause" and notifies the Employee
in writing of that decision. A termination without "cause" will
NOT affect the severance benefits for which the Employee otherwise
is eligible, as set forth further below.
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5.6 TERMINATION AS A RESULT OF A CHANGE IN CONTROL: If a Change in
Control shall occur and (a) if, following the change in control,
the Employee is terminated by the Company pursuant to Paragraphs
5.3 or 5.5 above; or, (b) if, following the change in control,
resulting in the Employee voluntarily terminating his employment
relationship within six (6) months of the change in control, the
Employee will be eligible for the severance benefits set forth
below.
5.6.1 "CHANGE IN CONTROL" DEFINED: A "change in control" occurs
at the time of closing and shall mean any of the following:
(i) a sale of all or substantially all of the assets of
the Company;
(ii) the acquisition of the securities of the Company,
representing more than fifty (50) percent of the
combined voting power of the Company's then
outstanding securities by any person or group of
persons;
(iii) a consolidation or merger of the Company in which
the Company is not the continuing or surviving
corporation or pursuant to which shares of the
Company's outstanding capital stock are converted
into cash, securities or other property, other than
a consolidation or merger of the Company in which
Company shareholders immediately prior to the
consolidation or merger have the same proportionate
ownership of voting capital stock of the surviving
corporation immediately after the consolidation or
merger;
(iv) in the event that the shares of the voting capital
stock of the Company are traded on an established
securities market: a public announcement that any
person has acquired or has the right to acquire
beneficial ownership of securities of the Company
representing more than fifty (50) percent of the
combined voting power of the Company's then
outstanding securities, and for this purpose the
terms "person" and "beneficial ownership" shall have
the meanings provided in Section 13(d) of the
Securities and Exchange Act of 1934, as amended, or
the commencement of or public announcement of an
intention to make a tender offer or exchange offer
for securities of the Company representing more than
fifty (50)
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percent of the combined voting power of the
Company's then outstanding securities; and,
(v) The Board of Directors of the Company, in its sole
discretion, determines that there has been a
sufficient change in the share ownership of the
Company to constitute a change of effective
ownership or control of the Company.
5.7 TERMINATION BY THE EMPLOYEE: The Company's obligations to the
Employee pursuant to this Agreement shall terminate if the
Employee elects to terminate this Agreement and notifies the
Company in writing of such election. A termination decision by
the Employee will affect the severance benefits for which the
Employee otherwise may have been eligible, as set forth further
below.
5.8 SUMMARY: If this Agreement is terminated pursuant to Paragraphs
5.2, 5.4 or 5.7, all of the Company's obligations to the Employee
shall cease immediately, unless otherwise mutually agreed to, in
writing, by the Company and the Employee, or unless as required by
applicable law. If this Agreement is terminated pursuant to
Paragraphs 5.3, 5.5 or 5.6, the Company's obligations to the
Employee, with the exception of the severance benefits set forth
below, shall cease thirty (30) days after the Employee becomes
disabled, is terminated without cause, or the employment
relationship ends due to a change in control or material change in
job duties and responsibilities, or unless as required by
applicable law.
ARTICLE VI. SEVERANCE COMPENSATION AND BENEFITS.
6.1 TERMINATION WITHOUT CAUSE: Subject to the qualifications of
Paragraphs 6.4 and 6.5 below, if the Company terminates this
Agreement without cause, the Employee shall be entitled to receive
one (1) year of his base salary and benefits (exclusive of any
stock options). For each additional twelve-month period the
Employee works subsequent to the execution of this Agreement, the
Employee shall be entitled to an additional month of severance
compensation and benefits, provided however, that the maximum
period for which the Employee may receive severance compensation
and benefits shall not exceed thirty-six (36) months. Any
severance compensation will be provided on a monthly basis in
accordance with normal payroll disbursement practices.
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6.2 TERMINATION AS A RESULT OF A CHANGE IN CONTROL: Subject to the
qualifications of Paragraphs 6.4 and 6.5 below, if the Employee
terminates this Agreement pursuant to the provisions of Paragraph
5.6 above, he shall be entitled to the same severance benefits
described in Paragraph 6.1 above. In addition, all outstanding
share options shall vest immediately.
6.3 TERMINATION DUE TO DISABILITY: Subject to the qualifications of
Paragraphs 6.4 and 6.5 below, if the Company terminates this
Agreement because the Employee has become disabled, as set forth
in Paragraph 5.3 above, the Employee shall be entitled to
severance compensation and benefits for a period of one (1) year,
subject to the following limitation. The Employee will be
obligated to seek whatever benefits are available under the
Company's short- and/or long-term disability plans. Assuming the
Employee qualifies for the short- or long-term disability
payments, his severance compensation will be reduced by the amount
of the benefits he is receiving from the Company's short- and/or
long-term disability plans.
6.4 FORFEITURE OF SEVERANCE BENEFITS: Regardless of the reason why the
employment relationship ends, if following termination, the
Employee breaches his obligations to the Company pursuant to
ARTICLES VII and VIII below, the Company's obligations to provide
the Employee severance compensation and benefits shall cease
immediately.
6.5 RELEASE OF CLAIMS: If the Employee is to qualify for the severance
compensation and benefits set forth in this ARTICLE (and as
described in Paragraphs 6.1 - 6.3), the Employee must execute a
general release of all claims. The general release will be
prepared by counsel for the Company and will relate to all
potential claims preceding the execution of the general release.
The general release will comply with all statutory requirements
governing releases. Unless the Employee executes a general
release, he shall not be eligible for severance compensation and
benefits.
6.6 TERMINATION FOR CAUSE: If the Company terminates this Agreement
for cause, the Employee shall not be entitled to receive any
severance compensation and benefits.
6.7 TERMINATION BY EMPLOYEE: If the Employee elects to terminate this
Agreement for any reasons other than those set forth above in
Paragraph
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5.6, the Employee shall not be entitled to receive any severance
compensation and benefits.
6.8 TERMINATION FOR ANY OTHER REASON: If this Agreement is terminated
by the Employer or Employee for any reasons other than those set
forth in ARTICLE V above, the Employee shall not be entitled to
receive any severance compensation and benefits.
6.9 NON-MONETARY BENEFITS: If the Company is obligated to provide non
- monetary severance benefits pursuant to this Agreement, the
Company, in its sole discretion, either shall provide the Employee
a monetary benefit on a monthly basis that will enable the
Employee to obtain independently an equivalent benefit to that
provided by the Company's plan, or will pay directly the
Employee's COBRA payment for the period the Employee is eligible
for the benefit. The Company's obligation pursuant to this
Paragraph, however, shall cease if and when the Employee obtains
alternative employment and receives a comparable benefit from his
subsequent employer, or when the benefit period set forth in this
Agreement ends, whichever occurs sooner. The Employee agrees that
he will notify the Company within seven (7) days of receiving
comparable benefits from another employer and that if he fails to
do so, he will be obligated to refund the value of any benefits
provided by the Company corresponding to the period when the
benefits overlapped.
ARTICLE VII. CONFIDENTIAL INFORMATION
7.1 CONFIDENTIALITY: The Employee agrees with the Company, and (as
separate obligations) with each of the Associated Companies to
which Employee's duties relate, that Employee will (both during
the continuance of the Agreement and after termination, without
limit of time):
(a) not disclose, divulge or communicate to any person (save to
those officials of the Company or Associated Companies
whose proper province it is to know the same or with the
written consent of the Board or if ordered so to do by a
court of a competent jurisdiction) any secret, private or
confidential information whatsoever of the Company or
Associated Companies or of any customer or client of the
Company or Associated Companies including without
limitation their operations, finance, business, products,
processes,
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techniques, know-how, customers, clients, plans or other
affairs whatsoever which is acquired by the Employee in the
course of his employment with the Company or Associated
Companies (whether or not under this Agreement) or which
would not have been acquired but for such employment;
(b) do everything reasonably within Employee's power to keep
such information secret and confidential and to avoid
disclosure to persons not entitled to the same;
(c) not use any such information for Employee's own benefit or
for the benefit of any person or persons or in a manner
which would or might be detrimental to the Company or
Associated Companies;
(d) sign such confidentiality agreements in favor of the
Company or Associated Companies or any other person as the
Company may reasonably request and will observe all such
agreements and all other restrictions and obligations upon
or of the Company or Associated Companies known to Employee
for the time being in relation to any confidential material
received from any third party.
ARTICLE VIII. NON-COMPETITION AND NON-SOLICITATION
8.1 NON-COMPETITION: Employee agrees that during the term of this
Agreement and for a period of one year following termination of
employment for any reason, Employee will not directly or
indirectly, alone or as a partner, officer, director, shareholder
or employee of any other firm or entity, engage in any commercial
activity in the U.S. in competition with any part of the Company's
business as conducted during the term of this Agreement or as of
the date of such termination of employment or with any part of the
Company's contemplated business with respect to which Employee has
private, secret, or Confidential Information as governed by
ARTICLE VII. For purposes of this clause, "shareholder" shall not
include beneficial ownership of less than five percent (5%) of the
combined voting power of all issued and outstanding voting
securities of a publicly held corporation whose stock is traded on
an acknowledged stock exchange.
8.2 NON-SOLICITATION OF EMPLOYEES: Employee recognizes that the
Company's workforce constitutes an important and vital aspect of
its business on a
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world-wide basis. Employee agrees that for a period of two (2)
years following the termination of this Agreement for any reason
whatsoever, Employee shall not solicit, or assist anyone else in
the solicitation of, any of the Company's then-current employees
to terminate their employment with the Company and to become
employed by any business enterprise with which the Employee may
then be associated, affiliated or connected.
8.3 NON-SOLICITATION OF CLIENTS: For one (1) year following
termination of employment, Employee shall not use his knowledge of
the business requirements of, or canvas, or by any other means
seek or solicit business or orders from any person or entity who
is or has been at any time during the twelve (12) months preceding
the Employee's termination, a client or customer of the Company or
Associated Companies.
8.4 POST-EMPLOYMENT OBLIGATIONS: Following termination, the Employee
will not directly or indirectly:
(a) represent himself or permit himself to be represented as
being connected with or successor to the Company or
Associated Companies or their respective businesses or as
acting on behalf of any of them;
(b) represent, promote, advertise or refer to his previous
connection with the Company or Associated Companies in such
a way as to seek to utilize any goodwill of any of the
Companies; this provision will not preclude the Employee
from referring to his previous connection with the
Companies on any CURRICULUM VITAE or application of
employment;
(c) carry on, cause or permit to be carried on any business
under or using any name, style, logo or image which is, has
been or might be used by the Company or Associated
Companies which is calculated to cause confusion with such
a name, style, logo or image or infer a connection with any
of the Companies.
8.5 CONSIDERATION: The Employee expressly agrees that there is good
and sufficient consideration for the promises set forth in this
Agreement.
ARTICLE IX. INTELLECTUAL PROPERTY
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9.1 ACKNOWLEDGMENT: The Employee acknowledges that his duties include
the making of inventions, discoveries, and improvements and
Employee accordingly hereby acknowledges and agrees that all
rights of any kind in respect of every invention, discovery,
creation or improvement of any product, process, formula, know-how
technique, expertise, method, design or similar matter or in
respect of any works of authorship, writings, drawings, computer
programs, or similar tangible or non-tangible manifestation of
knowledge of any kind which relate to or concern the business of
the Company or Associated Companies in any way made or conceived
by him alone or jointly during the term of this Agreement whether
or not made during the course of his employment hereunder shall
belong to the Company.
9.2 ASSIGNMENT: The Employee hereby assigns to the Company all (if
any) interest which he may from time to time have in such rights
and agrees that the Company shall be exclusively entitled to apply
for patents or any other protection whatsoever.
9.3 DISCLOSURE: The Employee shall disclose to the Company in writing
any matter before referred to as soon as Employee is able together
with all information concerning the same which the Company may
request or which may be relevant and Employee hereby irrevocably
appoints the Company as Employee's attorney to act for Employee
and in Employee's name in the preparation and execution of any
necessary documents and to prosecute any application in connection
with matters covered by this clause including power for the
Company and persons nominated by it to designate any other person
to act as attorney in such respects.
9.4 FURTHER ASSURANCE: Notwithstanding such power of attorney, the
Employee shall at the expense of the Company do, execute and sign
all such things, deeds, and documents as the Company may consider
desirable in connection with any such works of authorship,
invention, discovery, creation or improvement of any kind.
9.5 NOTICE: Minnesota law exempts from this Agreement "an invention
for which no equipment, supplies, facility or trade secret
information of the employer was used and which was developed
entirely on the Employee's own time, and (1) which does not relate
(a) directly to the business of the employer or (b) to the
employer's actual or demonstrably anticipated
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research or development, or (2) which does not result from any
work performed by the Employee for the employer."
ARTICLE X. GENERAL PROVISIONS.
10.1 SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns,
and to the Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributers,
devisees and legatees.
10.2 DISPUTES: Any dispute, controversy or claim for damages or other
relief arising under or in connection with this Agreement shall,
in the Company's sole discretion, be settled through arbitration
or judicial proceeding. If the Company elects to use arbitration,
the arbitration shall be in Minneapolis, Minnesota, and shall be
conducted by a panel of three (3) arbitrators in accordance with
the rules of the American Arbitration Association then in effect.
Judgment may be entered on the arbitrators' award in any court of
competent jurisdiction.
10.3 REASONABLENESS OF RESTRICTIVE COVENANTS: Employee and the Company
hereby stipulate that the prohibitions contained in ARTICLES VII,
VIII AND IX of this Agreement are reasonable, and each
specifically waives any objection to the reasonableness of said
prohibitions.
10.4 SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF: In addition to any
other relief afforded by law, the Company shall have the right to
enforce the provisions of ARTICLES VII and VIII of this Agreement
by specific performance and by injunctive relief against Employee
and any other persons concerned thereby. Damages, specific
performance and injunctive relief shall not be considered as
alternative remedies. If the Company is successful in any action
for enforcement of any provisions of said ARTICLES, the costs and
damages incurred by the Company related hereto, including
reasonable attorneys' fees and expenses, shall be paid by
Employee.
10.5 OFFSETS: Any amount payable to Employee pursuant to this
Agreement may be reduced for purposes of offsetting, either
directly or indirectly, any indebtedness or liability of Employee
to the Company.
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10.6 NOTICES: Any notice hereunder shall be in writing and shall be
properly served on the Employee if served upon him personally or
if left at or sent by certified mail addressed to him at his
address stated above or to any other address known to the Company
as then being his residence, and on the Company if sent by
certified mail to its registered office.
10.7 PREVIOUS AGREEMENTS: This Agreement operates as from the date of
execution by the Employee and Company (whichever is later, if the
dates are different) in substitution for and to the exclusion of
any Employment Agreement previously in force between the Company
and/or Associated Companies, and Employee.
10.8 WITHHOLDING: To the extent required by any applicable law,
including, without limitation, any federal or state income tax or
excise tax law or laws, the Federal Unemployment Tax Act or any
comparable federal, state or local laws, the Company retains the
right to withhold such portion of any amount or amounts payable to
Employee under this Agreement as the Company (on the written
advice of outside counsel) deems necessary.
10.9 CAPTIONS: The various headings or captions in this Agreement are
for convenience only and shall not affect the meaning or
interpretation of this Agreement.
10.10 GOVERNING LAW: The validity, interpretation, construction,
performance, enforcement, and remedies of or relating to this
Agreement, and the rights and obligations of the parties
hereunder, shall be governed by the substantive laws of the State
of Minnesota, each of the parties hereby consenting to the
exclusive jurisdiction of said courts for this purpose.
10.11 CONSTRUCTION: Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall
be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or
the remaining provisions of this Agreement.
10.12 WAIVERS: No failure on the part of either party to exercise, and
no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right or remedy hereunder
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preclude any other or further exercise thereof or the exercise of
any right or remedy granted hereby or by any related document or
by law.
10.13 MODIFICATION: This Agreement may not be modified or amended except
by written instrument signed by the parties hereto.
10.14 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
and understanding between the parties hereto in reference to all
the matters herein agreed upon.
10.15 COUNTERPARTS: This agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one (1) and the same
instrument.
10.16 SURVIVAL: The parties expressly acknowledge and agree that the
provisions of this Agreement which by their express or implied
terms extend beyond the termination of employment hereunder, or
beyond the termination of this Agreement (including the provisions
of ARTICLES VII, VIII AND IX) shall continue in full force and
effect notwithstanding termination of Employee's employment
hereunder or the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed and delivered as of the date below.
EMPLOYEE COMPANY
ADAYTUM, INC., a Delaware corporation
/s/ Daniel Mayleben By: /s/ Julie Buske
- ---------------------------- --------------------------------------
Daniel Mayleben Title: Vice President Human Resources
Address: Address:
4607 Adler Ave. Suite 400
- ---------------------------- 2051 Killebrew Drive
Minneapolis, Minnesota 55425
Edina, MN 55424
- ----------------------------
Dated: Sept. 7 , 2000 Dated: Sept. 7 , 2000
---- ----
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EXHIBIT A
DANIEL MAYLEBEN
ANNUAL BONUS POTENTIAL: $75,000
QUARTERLY BONUS POTENTIAL: $18,750
QUARTERLY OBJECTIVES WILL BE ESTABLISHED THE BEGINNING OF EACH FISCAL QUARTER.
ACTUAL BONUS PAYMENT WILL BE A BASED ON ACHIEVEMENT AGAINST OBJECTIVES.
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