Employment Agreement - SPSS Inc. and Jack Noonan
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement"), dated
as of March 1, 2005 (the "Agreement"), is by and between SPSS Inc., a Delaware
corporation having its principal offices at 233 South Wacker Drive, 11th Floor,
Chicago, Illinois ("SPSS" or the "Company"), and Jack Noonan (the "Employee").
WHEREAS, SPSS and the Employee entered into that certain Employment
Agreement, dated as of January 14, 1992, (the "Original Employment Agreement"),
and SPSS and Employee desire to amend and restate the terms of the Original
Employment Agreement as set forth herein; and
WHEREAS, SPSS desires to continue to retain the Employee's services, and
the Employee is willing to continue to serve as an employee of SPSS on the terms
and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing, the mutual covenants and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agrees as follows:
1. Employment. The Employee shall be employed by SPSS as President and
Chief Executive Officer ("CEO") for the term of Employment (as defined in
Section 4 below), and on the terms and conditions set out herein. In each of
these capacities, the Employee shall report directly to the Board of Directors
of SPSS the (the "Board").
2. Employment Services. The Employee shall be responsible for the
management of all aspects of SPSS's business and for carrying out corporate
policy as established by the Board. Each of the senior executives of SPSS shall
report to the Employee and the Employee shall be responsible for ensuring their
full and faithful performance of the duties assigned to them by the Employee or
the Board.
In addition, the Employee shall faithfully perform other executive and
managerial duties, or special assignments, as may be delegated to the Employee
by or on behalf of the Board. During the
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Term of Employment, the Employee shall work for SPSS and its Affiliates (as
hereinafter defined) and shall devote substantially all of his business efforts
and time to fulfill the duties of his employment.
For purposes of this Agreement, the term "Affiliate" as used herein shall
mean SPSS, any other corporation owned or controlled by SPSS, directly or
indirectly, and any subsidiary of SPSS.
3. Compensation.
(a) Base Salary. In full consideration for aforementioned services
and subject to the due performance thereof, the Employee shall receive an annual
salary of $345,000 (payable semi-monthly in arrears) during the Term of
Employment.
(b) Bonus Payments. The Employee shall be eligible to participate in
the Annual Incentive Bonus program for senior executives of SPSS and to receive
incentive cash payments in connection therewith. Employee's annual incentive
target shall be $345,000. Incentive cash payments shall be calculated quarterly
and paid approximately eight (8) weeks after the close of each calendar quarter.
(c) Reviews. The Employee shall be reviewed by the Compensation
Committee of the Board of Directors (the "Compensation Committee") with regard
to salary and bonus on no less frequent than an annual basis and/or in
conjunction with the Compensation Committee's review of the Company's other
senior executive officers. Any increase in salary or the award of a bonus shall
be made in the sole discretion of the Compensation Committee, taking into
account, at the sole discretion of the Board, whether the Employee has attained
the applicable performance goals, financial and other, established for the
Employee by the Board.
(d) Equity Incentives. Employee shall, subject to the approval of
the Compensation Committee, participate in the Incentive Stock Options program
available to other senior executive officers of SPSS. With regard to any
potential option grants, no options will actually be issued to the Employee
unless and until approval of the specific grant and issuance has been obtained
from the
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Compensation Committee.
(e) Benefits. The Employee shall be entitled to:
(i) reimbursement from SPSS of reasonable and necessary
business expenses incurred by the Employee so long as
such expenses are consistent with the Company's expense
reimbursement policy/practice, upon the Employee's
presentation from time to time of an itemized account of
such expenses signed by the Employee;
(ii) five (5) weeks of paid vacation time during each year of
employment;
(iii) ten (10) days of sick leave during each year of
employment;
(iv) the holidays observed by SPSS in the United States; and
(v) to receive, enjoy, and/or participate as applicable in
the other benefits customarily received by senior
executives and employees of SPSS; provided, however,
that nothing herein shall require SPSS to maintain the
benefits currently provided to SPSS employees.
4. Term of Employment. The Employee's term of employment by SPSS (the
"Term of Employment") shall commence on the date hereof and shall continue
through Date of Termination as defined below. The date on which the Term of
Employment ends pursuant to Section 5 below shall be referred to as the "Date of
Termination." Except as specifically agreed to in writing by the parties, all
provisions of this Agreement shall remain in full force and effect during the
entire Term of Employment.
5. Termination.
(a) The Term of Employment may be terminated:
(i) by mutual written agreement of SPSS and the Employee,
effective as mutually agreed,
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(ii) by SPSS with Good Cause (as defined hereunder),
effective immediately unless otherwise mutually agreed;
(iii) by Employee for Good Reason (as defined hereunder),
effective immediately unless otherwise mutually agreed;
(iv) by SPSS without Good Cause, effective 90 days after
written notice to Employee (the "SPSS Notice Period");
or
(v) by Employee without Good Reason, effective the earlier
of a mutually agreed Date of Termination or 90 days
after written notice to SPSS (the "Employee Notice
Period;" the SPSS Notice Period and the Employee Notice
Period are collectively referred to herein as the
"Notice Period").
(b) For purposes of this Agreement, "Good Cause" is defined as:
(i) the conviction of a crime involving theft or fraud;
(ii) illegal use of a controlled substance; or
(iii) the engagement in fraud or embezzlement.
(c) For purposes of this Agreement, "Good Reason" is defined as:
(i) a material diminishment of Employee's job assignment,
duties, responsibilities or reporting relationships
which is inconsistent with his initial position
hereunder, or any later agreed upon amendment of that
position;
(ii) a reduction in Employee's base compensation or total
compensation package, including benefit plans and
programs; or
(iii) a breach of the terms of this Agreement by SPSS.
(d) If this Agreement is terminated either by SPSS for Good Cause
pursuant to Section 5(a)(ii) or by the Employee without Good Reason pursuant to
Section 5(a)(v) above, SPSS will
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pay to Employee any outstanding amounts owed to Employee by SPSS, including
without limitation,
(i) any earned but unpaid base salary plus any earned and/or
awarded but unpaid cash incentive as of the Date of
Termination,
(ii) any accrued, unpaid and unused vacation pay as of the
Date of Termination; and
(iii) the reimbursement of any business expenses properly
incurred by Employee pursuant to Section 3(e)(i) above.
(e) If this Agreement is terminated either by the Employee for Good
Reason pursuant to Section 5(a)(iii) above or by SPSS without Good Cause
pursuant to Section 5(a)(iv) above, SPSS will pay and/or provide (as otherwise
reasonably applicable) to Employee (except as otherwise provided in Section 9 of
this Agreement):
(i) the full amount of the salary and benefits earned by the
Employee during the Notice Period, if applicable;
(ii) any earned but unpaid base salary plus any earned and/or
awarded but unpaid cash incentive as of the Date of
Termination;
(iii) the amount of the incentive cash payment to which the
Employee would have been entitled had the annual
incentive target been fully met, prorated for the number
of days during the relevant fiscal quarter for which the
Employee was employed prior to the Date of Termination;
(iv) any accrued, unpaid and unused vacation pay as of the
Date of Termination;
(v) the reimbursement of any business expenses properly
incurred by Employee pursuant to Section 3(e)(i) above.
(vi) payments equal to:
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(A) Employee's monthly base salary (annual base salary
divided by 12) in effect at the Date of
Termination for a period of 18 months (not
including fringe benefits or bonus) payable as a
lump sum, and
(B) A payment equal to the product of six (6)
multiplied by the amount of the incentive cash
payments to which the Employee would have been
entitled had the annual incentive target been
fully met for the full fiscal quarter during which
the Date of Termination occurred;
(vii) continued benefits or value thereof for a period of 36
months (including all existing plans, programs and
practices for the first 18 months and including only
health and welfare benefits for the next 18 months)
following the Date of Termination (including a
continuation of professional dues and subscriptions
otherwise paid by SPSS), at no less than the level of
participation afforded to Employee immediately prior to
the Date of Termination;
(viii) professional outplacement services, but not to exceed a
term of 12 months, at a level customary for a senior
executive, to be provided by a firm mutually acceptable
to SPSS and the Employee;
(ix) the continued use of a mobile telephone provided for and
paid by the Company, access to Employee's office
telephone number and voice mailbox that exist at the
Date of Termination, and access to and use of Employee's
personal Company email address for a mutually agreed
upon, reasonable period, which period shall not be less
than 90 days
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from the Date of Termination; and
(x) acceptable employment references, as reasonably
requested by the Employee, which employment references
shall include information regarding Employee's dates of
employment with SPSS, job title, pay rate and any such
additional information as SPSS and Employee may agree to
at the time such references are requested. For the
avoidance of doubt, SPSS shall in all instances act in
good faith to avoid negative comments regarding
Employee.
The parties hereto acknowledge that stock options granted by SPSS to the
Employee represent a material component of the Employee's total compensation
package. While each stock option vests pursuant to a predetermined vesting
schedule defined by the relevant stock option grant, the parties further
acknowledge that one of the purposes of a stock option vesting schedule is to
recognize the value of the Employee's continued employment. Accordingly, in the
event that the Employee is terminated pursuant to this Section 5(e) before the
date on which any stock option (or portion thereof) previously granted by SPSS
to the Employee would have otherwise vested (each, a "Vesting Date"), immediate
vesting will occur with respect to all then yet unvested stock options (or
portions thereof) that would have vested had the Employee been employed with the
Company as of the relevant Vesting Date. In the event that a legal, technical or
other reason arises that causes the Employee to be unable to exercise the vested
portion of such stock option, SPSS shall promptly pay to the Employee cash in
the amount equal to the product of (A) the number of shares subject to the
vested portion of the stock option and (B) the difference between (i) the
closing price on the Date of Termination and (ii) the grant price of such stock
option.
If this Agreement is terminated pursuant to this Section 5(e) and, at such
time, SPSS is unable to provide to Employee the benefits set forth in Section
5(e)(vii) above, SPSS shall take all actions
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reasonably necessary to provide Employee with the functional equivalent of the
benefits set forth in Section 5(e)(vii). SPSS and Employee agree and acknowledge
that the functional equivalent of the benefits set forth in Section 5(e)(vii)
may be provided in any of the following manners: (A) by SPSS's benefits provider
in accordance with the terms of SPSS's employee benefit plans; (B) in connection
with Employee's continued employment with SPSS in a position other than the
position set forth in Section 2 of this Agreement if, at such time, SPSS desires
to continue to retain Employee's services; or (C) by an agreed upon lump-sum
payment by SPSS to Employee, which payment shall be intended to compensate
Employee for the benefits set forth in Section 5(e)(vii). For the avoidance of
doubt, it is the intent of the parties that in no event shall any of the
alternatives set forth in the preceding sentence (relative to the provision of
benefits) result in a taxable event for the Employee. Should a taxable event be
caused to Employee, SPSS will make a cash payment to or on behalf of the
Employee in an amount necessary to keep Employee economically whole (i.e. a tax
gross-up). Furthermore, none of the above alternatives shall result in a
reduction of any rights or benefits (including but not limited to COBRA) to
which Employee is otherwise entitled.
(f) If this Agreement is terminated due to death (Section 7) or
disability (Section 6(b)) as set forth below, SPSS will pay to Employee any
outstanding amounts owed to Employee by SPSS, including without limitation,
(i) any earned but unpaid base salary plus any earned and/or
awarded but unpaid cash incentive as of the Date of
Termination,
(ii) any accrued, unpaid and unused vacation pay as of the
Date of Termination;
(iii) the reimbursement of any business expenses properly
incurred by Employee pursuant to Section 3(f)(i) above;
and
(iv) target incentive cash bonus prorated for the quarter in
which the Date of
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Termination occurs.
Unless otherwise specifically addressed above in this Section 5, all such
amounts payable or due under this Section 5 shall be paid promptly but in no
event later than 15 days following Date of Termination.
(g) In the event of a Change of Control (as defined herein) of SPSS,
the Employee shall be entitled to the following benefits:
(i) Treatment of Stock Options, Restricted Stock Units,
Restricted Stock and Stock Appreciation Rights upon Change of
Control
(A) Change of Control in a Transaction with a Private
Company. In the event a Change of Control occurs
as the result of a transaction between SPSS and a
company whose common stock is not publicly traded
on a domestic national stock exchange, the NASDAQ
national market, or their respective successors or
equivalents (a "Private Company"), then:
(1) all of Employee's stock options (vested and
unvested) granted by SPSS prior to the
Effective Date (as defined herein) (A) shall
accelerate and shall be deemed to be
exercised in full upon the Effective Date by
means of a cashless exercise and (B) with
regard to the underlying stock, shall be
cashed out at the transaction value as
calculated as of the Effective Date and
shall be paid by the Surviving Entity to
Employee on the Effective Date;
(2) all of Employee's restricted stock units
(vested and unvested) granted by SPSS prior
to the Effective Date (A) shall accelerate
and shall be deemed to be fully vested
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upon the Effective Date and (B) with regard
to the underlying stock, shall be cashed out
at the transaction value as calculated as of
the Effective Date and shall be paid by the
Surviving Entity to Employee on the
Effective Date;
(3) all restrictions on transferability of
restricted stock held by the Employee on the
Effective Date shall accelerate and shall be
deemed to have terminated immediately prior
to the Effective Date, and such restricted
stock shall be cashed out at the transaction
value as calculated as of the Effective Date
and shall be paid by the Surviving Entity to
the Employee on the Effective Date; and
(4) all of the stock appreciation rights (vested
and unvested) granted by SPSS prior to the
Effective Date (A) shall accelerate, shall
be deemed to be exercised in full upon the
Effective Date and the value thereof shall
be exchanged for SPSS stock at the market
value of such stock immediately prior to the
Effective Date and (B) with regard to the
underlying stock, shall be cashed out at the
transaction value as calculated as of the
Effective Date and shall be paid by the
Surviving Entity to Employee on the
Effective Date.
(B) Change of Control in a Transaction With a Public
Company. In the event a Change of Control occurs
between SPSS and a
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company whose common stock is publicly traded on
the domestic national exchange, the NASDAQ
national market, or their respective successors
and equivalents (a "Public Company"), then
(1) all of Employee's stock options (vested and
unvested) granted by SPSS prior to the
Effective Date (A) shall accelerate and
shall be deemed to be exercised in full upon
the Effective Date by means of a cashless
exercise and (B) with regard to the
underlying stock, shall be exchanged, on the
Effective Date, for a proportionate share of
the consideration to be paid in connection
with the Change of Control;
(2) all of Employee's restricted stock units
(vested and unvested) granted by SPSS prior
to the Effective Date (A) shall accelerate
and be deemed to be fully vested upon the
Effective Date and (B) with regard to the
underlying stock, shall be exchanged, on the
Effective Date, for a proportionate share of
the consideration to be paid in connection
with the Change of Control;
(3) all restrictions on transferability of
restricted stock held by the Employee on the
Effective Date shall accelerate and shall be
deemed to have terminated immediately prior
to the Effective Date, and such restricted
stock shall be exchanged, on the Effective
Date, for a proportionate
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share of the consideration to be paid in
connection with the Change of Control; and
(4) all of the stock appreciation rights (vested
and unvested) granted by SPSS prior to the
Effective Date (A) shall accelerate, shall
be deemed to be exercised in full upon the
Effective Date and the value thereof shall
be exchanged for SPSS stock at the market
value of such stock immediately prior to the
Effective Date and (B) with regard to the
underlying stock, shall be exchanged, on the
Effective Date, for a proportionate share of
the consideration to be paid in connection
with the Change of Control.
(ii) Additional Benefit Package. If, upon the Effective Date,
or within twelve (12) months after the Effective Date, the Surviving
Entity terminates the Employee's employment without Good Cause, the
Employee resigns for Good Reason, or a Constructive Termination (as
defined herein) occurs, the Employee shall be entitled to all
amounts to which the Employee would be entitled if the Employee's
employment was terminated pursuant to Section 5(e) hereof.
The term "Change of Control," as used herein, shall mean any one or more
of the following: (i) the accumulation, by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (A) if not previously owning
common stock of the Company as of the date of this Agreement, of Fifteen Percent
(15%) or more of the shares of the then outstanding common stock of SPSS (the
"Outstanding Common Stock"), or (B) if previously owning common stock of the
Company as of the date of this
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Agreement, of Fifty Percent (50%) or more of the shares of the Outstanding
Common Stock, (ii) a merger or consolidation of SPSS in which SPSS does not
survive as an independent public company, (iii) a sale of all or substantially
all of the assets of SPSS, (iv) a triggering event under that certain Amended
and Restated Rights Agreement, dated as of August 31, 2004, by and between SPSS
and Computershare Investor Services, LLC or any amendment, restatement or
replacement thereof, or (v) a liquidation or dissolution of SPSS; provided,
however, that the following acquisitions shall not constitute a Change of
Control for the purposes of this Agreement: (i) any acquisitions of common stock
or securities convertible into common stock directly from SPSS, or (ii) any
acquisition of common stock or securities convertible into common stock by any
employee benefit plan (or related trust) sponsored or maintained by SPSS.
The term "Constructive Termination," as used herein, shall mean:
(i) a reduction for a reason other than Good Cause, in Employee's
base compensation or total compensation package, including benefit plans and
programs (as compared to the compensation package which the Employee received in
the full fiscal year immediately preceding the year in which the Effective Date
occurred), which reduction occurs during any twelve month period beginning on or
after the Effective Date and ending on or prior to the later of (x) the second
anniversary date of the Effective Date or (y) the date on which any SPSS stock
options and stock appreciation rights then held by the Employee become fully
vested; or
(ii) any action (an "Action") taken by the Company or the Surviving
Entity following a Change of Control, for a reason other than Good Cause, which
results in a material diminishment of the Employee's job assignment, duties,
responsibilities, or reporting relationships which is inconsistent with his
position with SPSS as it existed immediately prior to the Effective Date.
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(iii) a change in Employee's principle location of employment
by more than fifty (50) miles from that location of employment which
existed immediately prior to the Effective Date.
In order for the events set forth in the immediately preceding sections (i) and
(ii) above to constitute a Constructive Termination, such events must be
followed within ninety (90) days by the resignation of the Employee.
The term "Surviving Entity," as used herein, shall mean the entity
surviving a transaction between SPSS and another company (with the term
"company" to include by not be limited to any individual, group or individuals,
partnership, corporation or other similar entities).
The term "Effective Date," as used herein, shall mean the date on which a
Change of Control becomes effective.
6. Disability of the Employee.
(a) Temporary Disability. The Employee shall be covered by the
Company's temporary disability policy.
(b) Total and Permanent Disability. In the event that the Employee
suffers total and permanent disability during his Term of Employment hereunder,
then, effective on the date thereof, the Term of Employment shall conclude.
Total and permanent disability shall mean a disability because of which the
Employee is physically or mentally unable to substantially perform the duties
required of him or her under this Agreement for a period of six consecutive
months or more.
7. Death of the Employee. If the Employee dies during the Term of
Employment hereunder, the Term of Employment shall conclude on the date thereof,
and the amounts due to the Employee hereunder shall be paid to the Employee's
designated beneficiary, or in the event no beneficiary has been designated or
survives the Employee, to the estate of the Employee.
8. Effect of Expiration or Termination. In the event this Agreement is
terminated pursuant
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to Section 5 or is concluded as described in Section 6, the Employee shall
tender his resignation to the board of directors of SPSS and any Affiliate of
SPSS on which he may then be serving. Following the Employee's resignation,
Sections 9, 10 and 11 of this Agreement shall continue in accordance with the
terms and conditions of each respective section.
9. Outstanding Amounts Owed to SPSS by Employee. In the event this
Agreement is terminated pursuant to Section 5, or is concluded as described in
Section 6(b) or Section 7, any outstanding amounts owed, due or payable to SPSS
by the Employee, which amounts are evidenced in writing by SPSS or are otherwise
agreed to by SPSS and the Employee, shall, unless otherwise agreed, become due
and immediately payable, and SPSS shall be entitled to withhold any payments
required to be made to the Employee herein, including without limitation,
payments in respect of any SPSS capital stock, severance payments, and other
similar items, until SPSS shall have been paid all amounts owing to it by the
Employee.
10. Director and Officer Insurance. SPSS agrees that it shall indemnify
the Employee against any actual or threatened actions or proceedings brought
against the Employee by reason of the fact that he is or was an employee,
officer, consultant or agent of the Company, to the fullest extent permitted by
the Delaware General Corporation Law. Employee shall be covered by the Director
and Officer Insurance policies maintained by the Company, and the Company shall
make special arrangements, if necessary, to continue providing insurance
coverage for the Employee following the Date of Termination, unless the Employee
is terminated for Good Cause pursuant to Section 5(a)(ii) above.
11. Non-Competition; Confidentiality; Work for Hire.
(a) The Employee understands that the Company's business concerns
proprietary computer programs and related documentation (software) which
includes, but is not limited to, the SPSS mainframe/mini software product line
and the SPSS micro/PC software product line. The
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Employee understands that in the course of his or her employment with SPSS, SPSS
and/or its Affiliates may provide the Employee with, or access to, such software
(including, without limitation, source listings therefore), as well as
confidential and/or proprietary prospect and customer lists, data, research,
specifications, memoranda, files, records, plans, concepts, flow charts,
drawings, designs, descriptions, formulations, trade secrets and other
confidential and/or proprietary information and property, including but not
limited to, information regarding SPSS operations, businesses, affairs,
management and market structure (all of the foregoing collectively referred to
as the "Confidential Property").
(b) The Employee acknowledges and agrees that the Confidential
Property, and all information and intellectual property and other data which the
Employee develops in connection with his employment duties is the sole and
exclusive property of SPSS and is not available to any third parties.
(c) The Employee will regard and preserve as confidential and as
trade secrets all the Confidential Property. During the Employee's employment
and thereafter, the Employee will not, directly or indirectly, communicate or
divulge to, or use for the benefit of himself or any other person, firm,
association or corporation, without the prior written consent of SPSS, any
Confidential Property. The Confidential Property shall remain the sole and
exclusive property of SPSS, and upon any expiration or termination of the Term
of Employment for any reason whatsoever, the Employee shall promptly return any
and all Confidential Property in his possession or control to SPSS.
(d) The Employee shall have no right, title or interest of any kind
or nature in any of the Confidential Property or any proceeds therefrom. With
respect to any Confidential Property which the Employee has developed or
develops (either alone or with others) during his employment with SPSS, the
Employee agrees:
(i) to disclose the same promptly to an officer of SPSS;
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(ii) to grant and assign to SPSS, without additional payment
or consideration of any kind, all of the Employee's
rights, titles and interests therein, as directed by
SPSS;
(iii) to execute any applications, assignments and other
instruments in writing that SPSS may prepare, at the
Company's expense, to apply for, obtain or maintain,
solely for the benefit of SPSS, any patents or
proprietary interests therein, in the United States and
any and all foreign countries; and
(iv) to provide any and all assistance as SPSS may request,
at the Company's expense, in the prosecution of such
applications, in the prosecution or defense of any
patent interferences, and in any and all litigation in
which SPSS may be involved relating to the same.
The above shall not apply to the Employee's general skills and knowledge nor to
enhancement of the employee's general skills and knowledge as a result of his
employment, nor shall the above apply to protectible information which is or
becomes in the public domain through no fault of the Employee or protectible
information which bears no reasonable relation to the software business of SPSS
as described in subsection (a) hereof.
(e) The Employee further recognizes and agrees that:
(i) SPSS licenses the use of various computer software
("Licensed Software") from a variety of outside
companies. SPSS does not own the Licensed Software or
its related documentation and, unless authorized by the
licensor, does not have the right to reproduce it;
(ii) The Employee will use Licensed Software only in
accordance with the terms of the applicable license
agreement;
(iii) If the Employee learns of any misuse of Licensed
Software or related documentation within SPSS, he shall
notify the appropriate party at SPSS of the misuse;
(iv) SPSS employees caught making, acquiring or using
unauthorized copies of Licensed Software will be
disciplined as appropriate under the circumstances; and
(v) According to the U.S. Copyright Law, illegal
reproduction of copyrighted Licensed Software can be
subjected to various substantial civil damages and/or
criminal penalties, including fines and imprisonment.
Other Licensed Software may be covered by trade
secret/confidentiality agreements which are protected
under state laws.
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(f) The Employee hereby further covenants and agrees that, during
the period of his employment with SPSS, and during the Agreed Period (as
hereinafter defined), the Employee shall not (i) be engaged or involved in any
manner in Prohibited Activities (as hereinafter defined) in any Prohibited
Territory (as hereinafter defined) or (ii) solicit or otherwise engage with
(except pursuant to the Employee's employment with SPSS) any customers or
clients of SPSS existing on the date of such expiration or termination, in any
transactions which are in direct competition with the statistical data analysis
software business of SPSS which SPSS did or could have engaged in with those
customers or clients at any time during the Employee's employment with SPSS. For
purposes of this Section 11, (i) "Prohibited Activities" shall mean any
development, sales, marketing, licensing and/or distribution of any statistical
data analysis software which is directly competitive with any products being
marketed by SPSS or any of its Affiliates as of the date of reference, and (ii)
"Prohibited Territory" mans the United States, Europe and/or any other country
or applicable geographic area where SPSS or its Affiliates are engaging, as of
the date of reference, in the marketing of any products. The term "Agreed
Period" shall mean a period of twelve (12) months after the date of any
expiration or termination of the Term of Employment; provided, however, if the
Employee intends to accept, and actually accepts, employment with a business
entity that has its principal place of business and headquarters in Europe, and
the Employee's place of work for such entity shall be within Europe, then, with
respect to Prohibited Activities in Europe and solicitation of SPSS customers
located in Europe, the Agreed Period shall be a period of six (6) months after
the date of any expiration or termination of the Term of Employment.
If SPSS is sold or merged into another company or other business entity,
or otherwise ceases to exist for any reason, and this Agreement is not assumed
in full by the company or other business entity to which SPSS is sold or merged
into, or the Employee is not offered a comparable position to the position then
held by the Employee at SPSS in lieu of the assumption of this Agreement, which
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position is accepted by Employee, the provisions of this subsection 11(f) shall
terminate effective upon the occurrence of the events described in this
sentence. For the avoidance of doubt, in the event of a Change of Control (as
defined in Section 5(g)) and subsequent termination of Employee's employment for
any reason within twelve (12) months after the Effective Date of such Change of
Control, the Agreed Period shall not apply.
(g) SPSS encourages its employees to author and publish papers and
articles related to their lines of work with SPSS. However, the Employee
acknowledges that SPSS reserves the right to approve such material prior to
publishing and, if necessary, to delete any portion that SPSS does not wish to
disclose to others outside of SPSS.
(h) During the Agreed Period, the Employee will not directly or
indirectly employ, solicit for employment, or advise or recommend to any other
person that they employ or solicit for employment, any employee of SPSS or any
Affiliate.
(i) During the Agreed Period, the Employee will not directly or
indirectly hire, engage, send any work to, place orders with, or in any manner
be associated with any supplier, contractor, subcontractor or other person or
firm which rendered manufacturing or other services, or sold any products, to
SPSS any Affiliate if such action by the Employee would have a material adverse
effect on the business, assets or financial condition of SPSS or any Affiliate.
(j) The Employee understands that a breach by him of any provision
of this Agreement may cause substantial injury to SPSS which may be irreparable
and/or in amounts difficult or impossible to ascertain, and that in the event
the Employee breaches any provision of this Agreement, SPSS shall have, in
addition to all other remedies available in the event of a breach of this
Agreement, the right to injunctive or other equitable relief. Further, the
Employee acknowledges and agrees that the restrictions and commitments set forth
in this Agreement are necessary to protect the Company's legitimate interests
and are reasonable in scope, area and time, and that if, despite this
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acknowledgment and agreement, at the time of the enforcement of any provision of
this Agreement a court of competent jurisdiction shall hold that the period or
scope of such provision is unreasonable under the circumstances then existing,
the maximum reasonable period or scope under such circumstances shall be
substituted for the period or scope stated in such provision.
In connection with the foregoing provisions of this Section 11, the
Employee represents that the Employee's experience, capabilities and
circumstances are such that such provisions will not prevent the Employee from
earning a livelihood. The Employee further agrees that the limitations set forth
in this Section 11 (including, without limitation, any time or territorial
limitations) are reasonable and properly required for the adequate protection of
the business of SPSS (and its Affiliates). In the event any such territorial or
time limitation is deemed to be unreasonable by a court of competent
jurisdiction, Employee agrees to the reduction of the territorial or time
limitation to the area or period which such court shall have deemed reasonable.
It is understood and agreed that the covenants made by the Employee in this
Section 11 shall survive the expiration or termination of this Agreement.
12. Non-Waiver of Rights. The failure to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed do be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
13. Arbitration. Any dispute as to any claim under this Agreement shall be
settled by arbitration in Chicago, Illinois by a panel of three arbitrators, who
shall be appointed pursuant to the rules of the American Arbitration
Association. The arbitration shall be conducted promptly and expeditiously in
accordance with the applicable arbitration rules of the American Arbitration
Association. Any award issued as a result of such arbitration shall be final and
binding on the parties,
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and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
14 Severability. Whenever there may be a conflict between the provisions
of this Agreement and any statute, prevailing law, ordinance or regulation, the
latter shall prevail, but in such event the provisions of this Agreement so
affected shall be construed and limited only to the extent necessary to bring it
within the requirements of such law and in no event shall such illegality or
unenforceability offset the remaining provisions or remaining portions of this
Agreement.
15 Notices. Any notice given by either party hereunder shall be in writing
and shall be personally delivered or shall be mailed, certified or registered
mail, postage prepaid, as follows:
To SPSS: SPSS Inc.
233 South Wacker Drive
11th Floor
Chicago, Illinois 60606
Attention: Board of Directors
With a copy to: Lawrence R. Samuels
McGuireWoods LLP
77 West Wacker Drive
Suite 4100
Chicago, Illinois 60601
To Employee: At the address of the Employee
as set forth on the payroll records
of SPSS.
or to such other address as may have been furnished to the other party by
written notice.
16. Assignment. The rights and obligations of SPSS under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of SPSS.
17. Entire Agreement. This Agreement contains the entire agreement between
the parties and supersedes all prior agreements and representations, written or
oral. No representations or agreements, written or oral, other than those
representations and agreements contained in this Agreement, have been made to or
in favor of the Employee. This Agreement may not be changed
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orally, but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
18. Prior Agreements. SPSS and Employee hereby agree that the terms of
this Agreement shall supersede and replace the terms of both the Original
Employment Agreement and any change-of-control agreements previously entered
into by SPSS and the Employee (collectively, the "Prior Agreements"), and upon
the execution of this Agreement, the terms of the Prior Agreements shall no
longer be in effect.
19. Applicable Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to its
conflicts of law doctrine, and the Employee hereby consents to personal
jurisdiction in Illinois with regard to any dispute arising between the parties
hereto.
20. Amendment for Code Section 409A. Notwithstanding any provision of this
Agreement to the contrary, SPSS and Employee agree that to the extent Code
section 409A applies to this Agreement, this Agreement shall be timely amended
to conform to the requirements of paragraphs (2), (3), and (4) of Code section
409A, as interpreted by guidance issued by the Internal Revenue Service. SPSS
and Employee further agree that the Agreement shall be administered in
accordance with the requirements of Code section 409A, and all amounts payable
hereunder shall be distributed only in compliance with the requirements of
paragraphs (2), (3) and (4) of such Code section. No distribution under the
Agreement that would fail to meet the requirements of such paragraphs shall be
made. For the avoidance of doubt, SPSS and Employee will cooperate in good faith
in amending this Agreement pursuant to this Section 20. No amendments may be
made without the consent of the Employee.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EMPLOYEE: SPSS INC.:
/s/ Jack Noonan By: /s/ Norman H. Nie
----------------------------- ----------------------------------
Jack Noonan Norman H. Nie
for the Board of Directors
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Statutory Notice
We are required, under the Employee Patent Act, Ill. Rev. Stat. ch. 140,
-302 (1987), to provide each employee who enters into an employment agreement
containing a "work-for-hire" provision with a written notification of the
following:
The agreement does not apply to 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, unless (a)
the invention relates (i) to the business of the employer, or (ii) to the
employer's actual or demonstrably anticipated research or development, or
(b) the invention results from any work performed by the employee for the
employer.
Please acknowledge that you have received a copy of this Notice as of
March 14, 2005, by signing below.
Employee
/s/ Jack Noonan
------------------------------------------
Jack Noonan
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