Exhibit 10.1
CHANGE OF CONTROL,
CONFIDENTIALITY, INVENTIONS AND COPYRIGHTS AGREEMENT
This Change of Control, Confidentiality, Inventions, and Copyrights
Agreement ("Agreement") is entered into effective as of the 15th day of
November, 2006, by and between CorVu Corporation ("CorVu" or "the Company"), a
Minnesota corporation, and David C. Carlson ("Employee").
RECITALS
A. CorVu is a Minnesota corporation engaged in the business of
performance management software development.
B. Employee works for CorVu as Chief Financial Officer.
C. CorVu, through its research, development, and expenditure of funds,
has developed confidential information, including trade secrets.
D. During Employee's employment, Employee has and will have access to
CorVu's valuable Confidential Information (as defined below), may contribute to
Confidential Information, and acknowledges that CorVu will suffer irreparable
harm if Employee uses Confidential Information outside Employee's employment or
makes unauthorized disclosure of Confidential Information to any third party.
E. Employee further acknowledges that Employee has been notified and
recognizes that execution of this Agreement, including specifically the
restrictive covenants contained in Paragraphs 2.2 through 2.4 of this Agreement,
is an express condition of the terms and conditions of this Agreement.
AGREEMENT
ARTICLE I
CONSIDERATION
1.1 Consideration. In consideration for Employee's promises, covenants,
and obligations set forth in this Agreement, CorVu agrees to the Change of
Control Benefits set forth in Section 3.1 below.
ARTICLE II
CONFIDENTIALITY, INVENTIONS, AND COPYRIGHTS
2.1 Definitions. For purposes of this Agreement, the terms listed
below shall have the following meanings:
a. "Confidential Information" shall mean any information not
generally known or readily ascertainable by CorVu's competitors or the
general public. Confidential Information includes, but is not limited
to, use of or customization to computer, software, and/or internet
applications; data of any type that is created by Employee, is
provided, or to which access is provided, in the course of Employee's
employment by CorVu; data or conclusions or opinions formed by Employee
in the course of employment; manuals; trade secrets; methods,
procedures, or techniques pertaining to the business of CorVu;
specifications; systems; price lists; marketing plans; sales or service
analyses; financial information; customer names or other information;
supplier and/or vendor names or other information related thereto;
employee names or other information related thereto; the identities
and/or information regarding actual and/or prospective strategic
partners and/or investors; research and development data; diagrams;
drawings; videotapes, DVD's, CD's, audiotapes, or computerized media;
and notes, memoranda, notebooks, and records or documents that are
created, handled, seen, or used by Employee in the course of
employment. Confidential Information does not include information that
Employee can demonstrate by reliable, corroborated documentary evidence
(1) is generally available to the public or (2) became generally
available through no act or failure to act by Employee.
b. "Customer" shall mean any person or entity that (1) has a
contract or business relationship with CorVu, (2) is negotiating to
contract or enter into a business relationship with CorVu, or (3) has,
within the last two (2) years of Employee's employment with CorVu,
purchased or leased products or services from CorVu. "Customer"
includes but is not limited to actual and/or prospective partners,
investors, vendors and/or suppliers.
c. "Invention" shall mean any invention, discovery, design,
improvement, business method, or idea, whether patentable or
copyrightable or not, and whether or not shown or described in writing
or reduced to practice.
2.2 Confidentiality Restrictions. Employee agrees at all times to use
all reasonable means to keep Confidential Information secret and confidential.
Employee shall not at any time (including after termination of Employee's
employment with CorVu) use, disclose, duplicate, record, or in any other manner
reproduce in whole or in part any Confidential Information, except as necessary
for the performance of Employee's duties on behalf of CorVu. Employee shall not
at any time provide services to any person or entity if providing such services
would require or likely result in Employee's using or disclosing Confidential
Information. Upon termination of Employee's employment with CorVu, or upon
CorVu's earlier request, Employee shall immediately return to CorVu all
originals and copies of Confidential Information and other CorVu materials and
property in Employee's possession. Employee acknowledges that use or disclosure
of any of CorVu's confidential or proprietary information in violation of this
Agreement would have a materially detrimental effect upon CorVu, the monetary
loss from which would be difficult, if not impossible, to measure.
2.3 Copyrights. Employee agrees that Employee is employed by CorVu and
that any computer, software, and/or internet applications or other work of
authorship (hereinafter referred to as "Works") prepared by Employee for the
benefit of CorVu or its customers or prepared at the request of CorVu or its
customers (as well as Employee's contributions to any other Works relating to
CorVu), shall be considered "work made for hire" within the meaning of U.S.
Copyright law and that all such Works shall belong to CorVu. To the extent that
any such Works cannot be considered a "work made for hire," Employee agrees to
disclose and assign, and hereby does assign, to CorVu all right, title, and
interest in and to such Works, and agrees to assist CorVu by executing any such
documents or applications as may be useful to evidence such ownership of such
Works. To the extent such Works are based on preexisting work in which Employee
has an ownership interest, Employee grants CorVu all right, title, and interest
in such Works free and clear of any claim based on the preexisting work.
2.4 Inventions.
a. Assignment. Employee shall promptly and fully disclose in
writing to CorVu, and will hold in trust for CorVu's sole right and
benefit, any Invention that Employee, during the period of employment
and for one year thereafter, makes, conceives, or reduces to practice
or causes to be made, conceived, or reduced to practice, either alone
or in conjunction with others, that:
(1) Relates to any subject matter pertaining to
Employee's employment; or
2) Relates to or is directly or indirectly connected
with CorVu's business, products, processes, or
Confidential Information; or
(3) Involves the use of any of CorVu's time, material,
or facility.
Employee shall keep accurate, complete, and timely records for such
Inventions, which records shall be CorVu's property. Employee hereby
assigns to CorVu all of Employee's right, title, and interest in and to
all such Inventions and, upon CorVu's request, Employee shall execute,
verify, and deliver to CorVu such documents, including without
limitation, assignments and patent applications, and shall perform such
other acts, including, without limitation, appearing as a witness in
any action brought in connection with this Agreement that is necessary
to enable CorVu to obtain the sole right, title, and benefit to all
such Inventions.
b. Notice of Excluded Inventions. Employee agrees, and is
hereby notified, that the above agreement to assign Inventions to CorVu
does not apply to any Invention for which no equipment, supplies,
facility, or Confidential Information of CorVu's was used, which was
developed entirely on Employee's own time, and (a) which does not
relate: (i) directly to CorVu's business; or (ii) to CorVu's actual or
demonstrably anticipated research or development; or (b) which does not
result from any work performed by Employee for CorVu.
c. Listing of Excluded Inventions. Employee has disclosed and
identified in the attached Exhibit A entitled "Inventions and
Developments Prior to Employment with CorVu" all of the Inventions in
which Employee possesses any right, title, or interest prior to
Employee's employment with CorVu or execution of this Agreement and
which are not subject to this Agreement's terms.
ARTICLE III
CHANGE OF CONTROL
3.1 Change of Control.
a. If, anytime during the one (1) year immediately following a
"Change in Control", (1) Employee's employment is terminated (or not
renewed) without Cause by the Company, or (2) Employee's
responsibilities and/or tasks are reduced or Employee is demoted, or
(3) Employee's compensation is reduced, or (4) Employee is required to
relocate as a condition of continued employment, or (5) Employee's
responsibilities are changed to require, in the Employee's opinion, an
extensive amount of travel, or (6) Employee is required to sign an
agreement, which in the Employee's opinion is objectionable, as a
condition of continued employment then: (A) the Company shall pay
Employee, in a lump sum within fifteen (15) calendar days of (i) the
date of termination of employment (whether involuntary without Cause or
voluntary resulting from any of the actions taken discussed above in
paragraph 3.1 a. items (2)-(6)), (respectively, the "Termination Date")
or (ii) the expiration of any applicable rescission periods under the
release of claims agreement noted below, whichever occurs later, an
amount equal to six months of the Employee's then-current base salary;
(B) the Company shall provide at its expense continued group family
health, family dental, and life insurance benefits to Employee for a
period of six months following the Termination Date or until Employee
is eligible to be covered under another group plan (whichever period is
shorter); and (C) all Employee's unvested stock options in the Company
shall become fully vested. As a condition to Employee's receipt of the
Change of Control Benefits set forth in this Section 3.1, Employee will
be required to execute and not rescind a release of claims agreement in
favor of the Company, in a form prepared by the Company. If the Company
reasonably determines that this Agreement is subject to the limitations
of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), or any successor provision, and the regulations issued
thereunder, and that any Change of Control Benefit payable to Employee
would constitute an "excess parachute payment" as defined in Code
Section 280G, then the Company shall pay to Employee a "tax gross-up"
payment sufficient to pay (i) all excise taxes applicable to such
excess parachute payment, plus (ii) all income and excise taxes
applicable to such "tax gross-up" payment, so that Employee receives
the full amount of all Change of Control Benefits and benefits as
described in this Section 3.1.a. which would have been payable if the
limitations of Code Section 280G had not applied. Such additional cash
payment shall be made within thirty (30) days following the Termination
Date. A "Change of Control Benefit" shall mean any payment, benefit or
transfer of property in the nature of compensation paid to or for the
benefit of Employee under any arrangement that is considered contingent
on a Change of Control for purposes of Code Section 280G, including,
without limitation, any and all of Employee's salary, bonus, incentive,
stock, stock option, compensation or benefit plans, programs or other
arrangements, and shall include benefits payable under this Agreement.
b. For purposes of this Agreement, "Change of Control" shall
mean: (1) a merger or consolidation to which the Company is a party if
the individuals and entities who were shareholders of the Company
immediately prior to the effective date of such merger or consolidation
have, immediately following the effective date of such merger or
consolidation, beneficial ownership (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of less than fifty percent (50%) of
the total combined voting power of all classes of securities issued by
the surviving corporation for the election of directors of the
surviving corporation (for purposes of this clause, a Change in Control
will occur even if the individuals or entities acquiring more than
fifty percent (50%) of the total combined voting power through the
merger or consolidation were shareholders of the Company immediately
prior to the merger or consolidation); (2) the acquisition of the
direct or indirect beneficial ownership (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of securities of the Company
representing, in the aggregate, fifty-one percent (51%) or more of the
total combined voting power of all classes of the Company's then issued
and outstanding securities by any person or entity or by a group of
associated persons or entities acting in concert who were not
shareholders on the date hereof; (3) the sale of substantially all of
the properties and assets of the Company to any person or entity which
is not a wholly-owned subsidiary of the Company; or (4) the
shareholders of the Company approve any plan or proposal for the
liquidation of the Company.
c. For purposes of this Agreement, "Cause" shall be defined as
follows: (1) Employee's failure to competently perform the duties and
responsibilities of Employee's then-current position, follow the
reasonable direction of the Board of Directors or Employee's superiors,
or comply with the Company's rules, policies, or procedures; (2) any
job-related act of dishonesty, theft or misappropriation of the
Company's property, or job abandonment; (3) commission by Employee, on
or off the job, of any willful, intentional, criminal or negligent act
that has the purpose or effect of injuring the reputation, business or
performance of the Company's; and (4) any violation of any
confidentiality, return of property, copyright, inventions or like
agreements to which Employee may be subject.
ARTICLE IV
MISCELLANOUS
4.1 Understandings. Employee agrees and acknowledges that CorVu
informed Employee, prior to entering into this Agreement, that the restriction
provisions contained in Paragraph 2.2 through 2.4 would be required as part of
the terms and conditions of continuing employment. Employee agrees that the
restrictions and obligations in this Agreement are reasonable. Employee and
CorVu agree that the restrictions and obligations in this Agreement shall
survive the later of Employee's termination of employment with CorVu or the
termination of this Agreement, and shall apply regardless of whether Employee's
termination is voluntary or involuntary.
4.2 Remedies. The parties acknowledge and agree that, if Employee
breaches or threatens to breach the terms of this Agreement, CorVu shall be
entitled as a matter of right to injunctive relief and reasonable attorneys'
fees, costs, and expenses, in addition to any other remedies available at law or
equity.
4.3 Survival of Restrictions. Employee and CorVu agree that the
restrictions contained in Sections 2.2 through 2.4 of this Agreement shall
survive the termination of this Agreement and Employee's employment and shall
apply no matter how Employee's employment terminates and regardless of whether
Employee's termination is voluntary or involuntary.
4.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Minnesota without regard for conflicts
of law principles.
4.5 Jurisdiction and Venue. Employee expressly consents to the personal
jurisdiction for the state and federal courts located in the State of Minnesota
for any lawsuit or other action filed against Employee by CorVu arising out of
or relating to this Agreement. Employee further agrees that if CorVu brings any
action to enforce the terms of this Agreement or to recover damages for
Employee's breach of the Agreement, such action may be brought in the Hennepin
County District Court in Hennepin County, Minnesota or the United States
District Court for the District of Minnesota.
4.6 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon CorVu and Employee and their respective successors,
executors, and administrators, except that the services to be performed by
Employee are personal and are not assignable.
4.7 Captions. The captions set forth in this Agreement are for the
convenience only and shall not be considered as part of this Agreement or as in
any way limiting or amplifying the terms and conditions hereof.
4.8 No Conflicting Obligations. Employee represents and warrants to
CorVu that Employee is not under, or bound to be under in the future, any
obligation to any person or entity that is or would be inconsistent or in
conflict with this Agreement or would prevent, limit, or impair in any way the
performance by CorVu of Employee's obligations to CorVu, including but not
limited to any duties owed to any former employers not to compete or use or
disclose confidential information.
4.9 Waiver. The failure of a party to require compliance with any term
or obligation of this Agreement shall not constitute a waiver or prevent
enforcement of such term or obligation. A term or obligation of this Agreement
may be waived only by a written instrument signed by the party waiving
compliance.
4.10 Severability. In the event that any provision hereof is held
invalid or unenforceable by a court of competent jurisdiction, CorVu and
Employee agree that that part should be modified by the court to make it
enforceable to the maximum extent possible. If the part cannot be modified, then
that part may be severed and the other parts of this Agreement shall remain
enforceable.
4.11 Notices. Any notices given hereunder shall be in writing and
delivered or mailed by registered or certified mail, return receipt requested:
(a) If to CorVu: Joseph J. Caffarelli
CorVu Corporation
3400 West 66th Street Suite 445
Edina, MN 55435
With a copy to
Fredrikson & Byron, P.A.
John H. Stout
200 South 6th Street, Suite 4000
Minneapolis, MN 55402
(b) If to Employee: David Carlson
18165 39th Ave N
Plymouth, MN 55446
4.13 Counterparts. More than one counterpart of this Agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed an original.
4.14 At-Will Employee. This Agreement does not alter Employee's status
as an at-will employee. Either Employee or CorVu may terminate Employee's
employment at any time, with or without cause, and with or without notice.
4.15 Entire Agreement As To Its Subject Matter. This Agreement
constitutes the entire understanding of CorVu and Employee as to its subject
matter and supersedes all prior agreements, understandings, and negotiations
between the parties, whether oral or written, as to its subject matter. No
modification, supplement, or amendment of any provision hereof shall be valid
unless made in writing and signed by the parties.
With the intention of being bound hereby, the parties
execute this Agreement:
EMPLOYEE
/s/ David C. Carlson
-------------------------
David C. Carlson
Dated: November 15, 2006
CORVU CORP.
/s/ Joseph J. Caffarelli
------------------------
By: Joseph J. Caffarelli
Its: CEO
Dated: November 15, 2005
EXHIBIT A
INVENTIONS AND DEVELOPMENTS PRIOR TO EMPLOYMENT WITH CORVU
Employee has fully and truthfully disclosed below all inventions in which
Employee possesses any right, title, or interest prior to Employee's employment
with CorVu or Employee's signing of this Agreement and which are not subject to
the terms of this Agreement between Employee and CorVu.
If there are none, write "NONE."
NONE