Employment Agreement - Retek Inc. and John N. Buchanan
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of November 29, 1996 (the "Effective Date") by and between Retek
Distribution Corporation, a corporation organized under the laws of the British
Virgin Islands ("Retek"), and John N. Buchanan ("Employee"), and solely for
purposes of Section 9.7 hereof, HNC Software Inc., a Delaware corporation
("HNC").
BACKGROUND
A. This Agreement is entered into in connection with that certain
Exchange Agreement (the "Plan") dated as of October 25, 1996 among Retek, HNC
and the shareholders of Retek. Pursuant to the Plan, HNC is to purchase and
acquire all of the outstanding shares of Retek's capital stock in exchange for
shares of HNC's Common Stock. The date on which the Exchange (as that term is
defined in the Plan) is consummated shall be the Effective Date of this
Agreement.
B. Employee is a key employee of Retek and has been actively
involved in the development, management, marketing, sale and performance of
Retek's services and products. To preserve and protect the intangible assets
of Retek, including Retek's goodwill, customers and trade secrets, of which
Employee has and will have knowledge, and in consideration for HNC's entering
into and performing its obligations under the Plan, Employee has agreed to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing facts and the
mutual agreements of the parties contained herein, Retek, HNC and Employee
hereby agree as follows:
1. Employment; Scheduled Term. Subject to the terms and conditions
of this Agreement, Retek agrees to employ Employee, and Employee accepts
employment and agrees to be employed by Retek, during the period commencing on
the Effective Date and ending on the third (3rd) anniversary of the Effective
Date (such three (3) year period being hereinafter referred to as the
"Scheduled Term"), unless Employee's employment is earlier terminated in
accordance with this Agreement. If Employee's employment has not been earlier
terminated, then Employee's employment may continue after the Scheduled Term,
but after the Scheduled Term Employee's employment will cease to be governed by
the terms and conditions of this Agreement and shall be terminable by either
Retek or Employee at will at any time, with or without cause, for any reason or
no reason. The obligations of Employee set forth in the Employee Invention/
Confidentiality Agreement referred to in Section 6 shall survive the Scheduled
Term and shall survive the termination of Employee's employment, regardless of
the cause of such termination. Employee hereby represents and warrants to
Retek that he is free to enter into and fully perform this Agreement and the
agreements referred to herein without breach or violation of any agreement or
contract to which Employee is a party or by which Employee is bound.
2. Duties. Employee shall serve as Retek's Chief Executive Officer
with such duties and responsibilities as may from time to time be assigned to
Employee by Retek's Board of Directors. The duties and services to be
performed by Employee under this Agreement are collectively referred to herein
as the "Services". Employee shall initially report directly to Robert L. North,
President of HNC. Employee agrees that to the best of his ability and
experience he shall at all times conscientiously perform all of the duties and
obligations assigned to him under the terms of this Agreement. Employee's
offices at Retek shall be located at his current offices in Vancouver, Canada;
provided that Employee's duties will include reasonable travel, including but
not limited to travel to offices of HNC, its affiliates and current and
prospective customers as is reasonably necessary and appropriate to the
performance of Employee's duties hereunder.
<PAGE> 2
3. Full-Time Employment. Employee's employment shall be on a
full-time basis. Accordingly, Employees shall not engage in any outside work,
business or consulting activity for or on behalf of himself or any other person
or organization except with the prior written approval of HNC and Retek and
Employee shall otherwise do nothing inconsistent with the performance of
Employee's duties hereunder, provided that Employee may provide incidental
assistance to charitable or community organizations and manage his personal
investments provided such activities do not conflict with, impair or interfere
with Employee's performance of his obligations to Retek under this Agreement.
4. Non-Competition Agreement. Pursuant to the Plan, Employee has
entered into a Non-Competition Agreement with HNC (the "Non-Competition
Agreement"). The parties agree that any breach or violation by Employee of the
Non-Competition Agreement shall constitute a material breach by Employee of this
Agreement.
5. Compensation and Benefits.
5.1 Salary. During the term of this Agreement, Retek shall
pay Employees a salary at the rate of One Hundred Twenty Thousand Dollars (U.S.
$120,000) per annum. Employee's salary shall be payable in accordance with
Retek's customary payroll practices at Retek's customary payroll periods. All
sums payable to Employee hereunder shall be reduced by all national, state,
local and other withholding and similar taxes and payments required to be
withheld by Retek by applicable laws.
5.2 Bonus. Employees shall be eligible for an annual bonus.
The terms and conditions of the bonus shall be negotiated by Retek and Employee.
5.3 Stock Option Grant. Promptly following approval by the
stockholders of HNC of an increase in the number of shares reserved for issuance
pursuant to HNC's equity incentive plans, Employees shall be granted an option
(the "Option") to purchase up to one hundred ten thousand (110,000) shares HNC
Common Stock (as previously constituted) at an exercise price equal to the fair
market value per share of such stock on the date such options is granted, as
determined in accordance with HNC's 1995 Equity Incentive Plan (or other HNC
stock option plan under which HNC elects to grant the Option (either being
hereinafter called the "HNC Option Plan"). The Option shall be subject to the
terms and conditions of the HNC Option Plan, and Employee's right to exercise
the option shall vest over a four (4) year period commencing on the Effective
Date at the rate of 25% of the option shares per year, subject to and
conditioned upon Employee's continuous employment, as shall be specified in
greater detail in the Stock Option Agreement evidencing the Option, which shall
be in substantially the form of the agreement then used by HNC under the HNC
Option Plan (the "Option Grant Agreement"). The Option shall have a term of up
to 10 years, subject to earlier termination upon the termination of Employee's
employment, as shall be specified in greater detail in the Option Grant
Agreement.
5.4 Additional Benefits. So long as Retek is a wholly-owned
subsidiary of HNC, Employee shall be eligible to participate in HNC's employee
benefit plans of general application, including without limitations, any pension
or retirement savings plans and those plans covering life, health and dental
insurance in accordance with the rules established for individual participation
in any such plan and applicable law. In addition, Employees shall be entitled
to vacation and sick leave benefits in accordance with HNC's policies of general
application, with Employee's prior service time with Retek being credited to
Employee for purposes of determining Employee's benefits under such policies.
5.5 Reimbursement of Expenses. Retek shall reimburse
Employee for all reasonable and necessary expenses actually incurred by Employee
in connection with Employee's performance of the Services hereunder, provided
that such expenses are: (a) in accordance with the policies of Retek and
-2-
<PAGE> 3
HNC, as determined from time to time by the Board of Directors of Retek and
HNC; and (b) properly documented and verified by Employee.
6. Proprietary Rights. Employee has previously entered into an
Employee Proprietary Information and Invention Agreement with Retek in the
form attached hereto as Exhibit A (the "Employee Invention/Confidentiality
Agreement"). The Employee Invention/Confidentiality Agreement shall continue to
bind Employee and shall remain in full force and effect after the Exchange.
7. Terms and Termination.
7.1 Terms of Agreement. The term of this Agreement shall commence
on the Effective Date, and shall continue in effect until the earlier to occur
of: (i) the termination of this Agreement in accordance with this Section 7; or
(ii) the third (3rd) anniversary of the Effective Date.
7.2 Events of Termination. Employee's employment with Retek
shall terminate immediately upon any one of following occurrences;
(a) Termination Without Cause. Employee's employment shall
terminate upon the giving of a written notice by Retek to Employee stating that
Employee's employment is being terminated without Cause (as defined below),
which notice can be given by Retek at any time after the Effective Date at the
sole discretion of Retek, for any reason or for no reason ("Termination Without
Cause"). In addition, Employee's employment with Retek shall be deemed to have
been terminated in a Termination Without Cause if Employee terminates his
employment with Retek as a result of, and within thirty (30) days after the
occurrence of, any of the following events: (i) the material reduction by Retek
of HNC of Employee's base salary; or (ii) Retek or HNC commits a material
breach of this Agreement that is not cured within (60) days after both Retek
and HNC have received written notice of such material breach from Employee.
(b) Termination For Cause. Retek may terminate Employee's
employment at any time for "Cause" (as defined below) effective immediately upon
written notice to Employee ("Termination for Cause"). As used herein, "Cause"
shall mean: (i) Employee's commission of an intentional tort or an act of
violence so as to cause loss, damage or injury to the business, property or
reputation of Retek or HNC or subsidiaries or affiliates of either, or to any
employees, invitees or visitors of Retek or HNC or any other persons; (ii)
Employee's commission of any crime or act of fraud or dishonesty against Retek,
HNC or their respective subsidiaries of affiliates; (iii) Employee's commission
of a felony or the unlawful use by Employee of alcohol, drugs or other
controlled substances; (iv) Employee's habitual neglect of his duties; (v)
Employee's willful disregard or disobedience of any of the stated policies of
Retek or HNC that is not susceptible to cure or that is not cured within two (2)
days after Retek or HNC gives Employee written notice of such disregard of
disobedience of the policy; or (vi) any other material breach of this Agreement
by Employee (including without limitation a breach of the Non-Competition
Agreement or the Employee Invention/Confidentiality Agreement) that is not
susceptible to cure or that is not fully cured to HNC's reasonable satisfaction
within twenty (20) days after Retek or HNC gives written notice of such breach.
(c) Voluntary Termination. Employee's employment shall
automatically terminate upon any resignation by Employee of his employment
with Retek or any other voluntary termination or abandonment by Employee of his
employment with Retek ("Voluntary Termination"). A "Voluntary Termination"
shall not include any Termination Without Cause described in Section 7.2(a).
(d) Termination for Death or Disability. Retek's termination
of Employee's employment due to Employee's death or Employee's becoming
"Disabled" (as defined below)
-3-
<PAGE> 4
("Termination for Death or Disability"). For purposes of this Agreement,
Employee shall be conclusively deemed to have become "Disabled" if Employee
suffers any physical or mental illness or disability, incapacity or
incompetency preventing Employee from the substantial performance of his duties
under this Agreement for a period of 90 days within any period of 180
consecutive days.
(e) Termination Date. The effective date of Employee's termination
pursuant to Section 7.2(a), (b), (c), or (d) is referred to as herein as the
"Termination Date."
(f) Termination Not Sole Remedy. Termination of this Agreement and
Employee's employment hereunder shall be without prejudice to any other right
or remedy to which Retek or HNC may be entitled at law, in equity, or under
this Agreement.
8. Effect of Termination.
8.1 Termination Other Than for Cause. In the event that
Employee's employment hereunder is terminated pursuant to Section 7.2(a)
(Termination Without Cause) or Section 7.2(d) (Termination for Death or
Disability), then Employee, as his sole and exclusive right and remedy at law,
in equity or under this Agreement, shall: (a) continue to be paid his then
current base salary at the times such payments would have been due Employee
pursuant to Section 5 of this Agreement for a period of time equal to the
lesser of (i) six (6) months after the effective date of termination of (ii) the
remainder of the Schedule Term, which payments shall be made in installments
is accordance with Retek's customary payroll practices; and (b) be paid any
unpaid basis (if any) that, on the Termination Date, was both (i) fully due and
payable to Employee under the terms and conditions of the applicable bonus
program and (ii) not subject to any unsatisfied conditions or contingencies.
Notwithstanding the foregoing, in the event that Employee's employment
hereunder is terminated pursuant to Section 7.2(a) (Termination Without Cause)
during the first six months of the Scheduled Term, then Employee, as his sole
and exclusive right and remedy at law, equity or under this Agreement shall:
(a) continue to be paid his then-current base salary at the times such payments
would have been due Employee pursuant to Section 5 of this Agreement for twelve
(12) months after the effective date of termination, which payments shall be
made in installments in accordance with Retek's customary payroll practices;
and (b) be paid any unpaid bonus (if any) that, on the Termination Date, was
both (i) fully due and payable to Employee under the terms and conditions of
the applicable bonus program and (i) not subject to any unsatisfied conditions
or contingencies. Employee shall be entitled to no other payment or
compensation upon any such termination.
8.2 Termination For Causes. In the event that Employee's
employment hereunder is terminated pursuant to Section 7.2(b) (Termination For
Cause), then Employee, as his sole and exclusive right and remedy at law, in
equity or under this Agreement, shall be entitled to be paid, effective upon
such termination, the amount of his base salary and other compensation that
accrued through the Termination Date and no other compensation or payment
whatsoever. All other compensation from and after such Termination For Cause
(including without limitation any bonus payment) shall cause (except those
benefits that must be continued pursuant to applicable law or by the terms of
such benefit plans), and Employee shall not be entitled to any severance pay or
other payment or compensation whatsoever upon such Termination For Cause. If
the termination of Employee is later determined not to have been a Termination
For Cause, then the termination shall be deemed to be a Termination Without
Cause governed by the provisions of Section 8.1 above and Employee's sole
remedy, at law, in equity or under this Agreement will be that set forth in
Section 8.1.
8.3 Voluntary Termination. In the event that Employee's
employment hereunder is terminated pursuant to Section 7.2(c) (Voluntary
Termination), than Employee, as his sole and exclusive right and remedy at law,
in equity or under this Agreement, shall be entitled to be paid, effective upon
such termination, the amount of his base salary and other compensation that
accrued through the Termination
-4-
<PAGE> 5
Date and no other compensation or payment whatsoever. All other compensation
from and after such Voluntary Termination (including without limitation any
bonus payment) shall cease (except those benefits that must be continued
pursuant to applicable law or by the terms of such benefit plans), and Employee
shall not be entitled to any severance pay or other payment or compensation
whatsoever upon such Voluntary Termination.
8.4 Employee Benefits. After the Termination Date, neither
Retek nor HNC shall have any duty or responsibility whatsoever to continue to
provide benefits to Employee under this Agreement or other employee benefit
plans and programs, and Employee's rights under Retek's or HNC's benefit plans
of general application in which Employee participated, shall be determined under
the provisions of such plans.
8.5 Survival. Employee's obligations under the Non-Competition
Agreement and the Employee Invention/Confidentiality Agreement shall survive
the Termination Date and any termination of Employee's employment by Retek or
HNC.
9. Miscellaneous.
9.1 Arbitration. Employee and Retek will submit to mandatory
binding arbitration any controversy or claim arising out of, or relating to,
this Agreement or any breach hereof; provided, however, that each party will
retain its right to, and shall not be prohibited, limited or in any other way
restricted from, seeking or obtaining equitable relief (such as injunctive
relief) from a court having jurisdiction over the parties; and provided,
further, that Retek or HNC (as applicable) may, but need not, arbitrate any
claim that Employee has violated the Employee Invention/Confidentiality
Agreement or the Non-Competition Agreement. Any such arbitration shall be
conducted in San Diego, California in accordance with the commercial
arbitration rules of the American Arbitration Association then in effect, and
judgment upon the determination or award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
9.2 Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Delaware, excluding that body of laws pertaining to conflict of laws. If any
provision of this Agreement is found by any arbitrator or court of competent
jurisdiction to be invalid or unenforceable, then the parties hereby waive such
provision to the extent that it is found to be invalid or unenforceable and to
the extent that to do so would not deprive one of the parties of the
substantial benefit of its bargain. Such provision shall, to the extent
allowable by law and the preceding sentence, not be voided or canceled but will
instead be modified by such arbitrator or court so that it becomes enforceable
and, as modified, shall be enforced as any other provision hereof, all the other
provisions hereof continuing in full force and effect.
9.3 Remedies. Retek and Employee acknowledge that the services
to be provided by Employee are of a special, unique, unusual, extraordinary and
intellectual character, which gives them peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at law.
Accordingly, Employee hereby consents and agrees that for any material breach
or violation by Employee of any of the provisions of this Agreement, a
restraining order and/or injunction may be issued against Employee, in addition
to any other rights and remedies Retek or HNC may have, at law or equity,
including without limitation the recovery of money damages.
9.4 Amendment; Waiver. This Agreement may be amended,
modified, superseded, canceled, renewed or extended only by an agreement in
writing executed by Retek, HNC and Employee. The failure by either party at
any time to require performance or compliance by the other of any of its
obligations or agreements shall in no way affect the right to require such
performance or compliance at any
<PAGE> 6
time thereafter. The waiver by either party of a breach of any provision of
this Agreement shall not be treated as waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself. No waiver of
any kind will be effective or binding, unless it is in writing and is signed by
the party against whom such waiver is sought to be enforced.
9.5 Assignment. This Agreement and all rights hereunder are
personal to Employee and may not be transferred or assigned by Employee at any
time. Retek may assign its rights, together with its obligations hereunder, to
HNC or to any parent, subsidiary, affiliates or successor of HNC, or in
connection with any sale, transfer or other disposition of all or substantially
all the business and assets of Retek or HNC or any of their respective
subsidiaries or affiliates, whether by sale of stock, sale of assets, merger,
consolidation or otherwise; provided, that any such assignee assumes Retek's
obligations hereunder. This Agreement shall be binding upon, and inure to the
benefit of, the persons or entities who are permitted, by the terms of this
Agreement, to be successors, assigns and personal representatives of the
respective parties hereto.
9.6 Entire Agreement. This Agreement constitutes the entire
and only agreement and understanding between the parties relating to employment
of Employee with Retek or HNC and this Agreement supersedes and cancels any and
all previous contracts, managements or understandings with respect to
Employee's employment; except that the Non-Competition Agreement and the
Employee Invention/Confidentiality Agreement shall remain as independent
contracts and shall remain in full force and effect according to their terms.
9.7 Obligations, Rights and Status of HNC. HNC hereby agrees
with Employee that, for so long as Retek is a wholly-owned subsidiary of HNC,
HNC will guarantee Retek's performance of its financial obligations under this
Agreement. In consideration of HNC's foregoing guarantee, Employee and Retek
agree that, for so long as HNC owns capital stock of Retek that represents at
least a majority of the voting power of all Retek stock then outstanding, HNC
shall be entitled to enforce this Agreement against Employee and may exercise
Retek's rights hereunder.
9.8 Notices. All notices and other communications required or
permitted under this Agreement will be in writing and hand delivered, sent by
telecopier, sent by certified first class mail, postage pre-paid, or sent by
nationally recognized express courier service. Such notices and other
communications shall be effective (a) upon receipt if hand delivered, (b) five
(5) days after mailing if sent by mail, and (c) one (1) day after dispatch if
sent by telecopier (with electronic acknowledgment of successful transmission)
or by express courier, to the following addresses:
<TABLE>
<S> <C>
If to Retek: With a copy to:
Retek Distribution Corporation Fenwick & West LLP
25 Church Street Two Palo Alto Square, Suite 800
Hamilton, Bermuda HMLX Palo Alto, CA 94306 USA
Telecopier: (441) 295-0560; and Attention: Kenneth A. Linhares, Esq.
Telecopier: (415) 494-1417
HNC Software Inc.
5930 Cornerstone Court West Fenwick & West LLP
San Diego, CA 92121 Two Palo Alto Square, Suite 800
Attention: President Palo Alto, CA 94306 USA
Telecopier: (619) 452-3220 Attention: Kenneth A. Linhares, Esq.
Telecopier: (415) 494-1417
</TABLE>
-6-
<PAGE> 7
If to Employee: With a copy to:
John N. Buchanan Gourlay Spencer Slade & Winch
200-545 Clyde Avenue 1455 Bellevue Avenue, Suite 205
West Vancouver, B.C. West Vancouver, BC, CANADA
Canada V71 1C5 Attn: Charles V. Winch, Barrister
Telecopier: (604)925-3454 Telecopier: (604)925-1304
or to such other address as either party may have furnished to the other in
writing in accordance herewith , except that notices of change of address shall
only be effective upon receipt.
9.9 Headings. The heading contained in this Agreement are
for reference purposes only and shall in no way affect the meaning or
interpretation of this Agreement.
9.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which, taken
together, constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 8
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first above written.
RETEK DISTRIBUTION CORPORATION EMPLOYEE
By: /s/ Robert Jennings /s/ John N. Buchanan
-------------------------------- --------------------------------
Robert Jennings, President John N. Buchanan
For purposes of Section 9.7 of the Agreement only:
HNC SOFTWARE INC.
By: /s/ R.V. Thomas
-----------------------------
Name: Raymond V. Thomas
---------------------------
Title: Chief Financial Officer
and Secretary
--------------------------
Attachments:
Exhibit A: Employee Invention/Confidentiality Agreement
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
-8-