Attached files
| file | filename |
|---|---|
| 8-K - SAJAN INC | v192599_8k.htm |
| EX-99.1 - SAJAN INC | v192599_ex99-1.htm |
EXHIBIT
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made effective
this 4th day of August 2010, (the “Effective Date”) by and
between SAJAN, INC., a Delaware corporation having its principal executive
offices in the State of Wisconsin (the “Company”) and TIMOTHY CLAYTON,
an individual resident of the State of Minnesota (the “Employee”).
RECITALS
WHEREAS, the Company wishes to employ
the Employee to render services for the Company on the terms and conditions set
forth in this Agreement; and
WHEREAS, the Employee wishes to be
retained and employed by the Company on such terms and conditions.
NOW,
THEREFORE, in consideration of the premises, the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Employee and the Company
desire to enter into this Agreement, upon the terms and conditions hereinafter
set forth.
AGREEMENT
1. Employment;
Duties.
1.1 The
Company hereby agrees to employ the Employee, and the Employee hereby accepts
such employment. The Employee shall serve, on a full-time basis, as
the Chief Financial Officer of the Company at the Company’s River Falls,
Wisconsin location. The Employee will render such business and
professional services in the performance of Employee’s duties, consistent with
Employee’s position within the Company, as shall reasonably be assigned to
Employee by the Company’s Chief Executive Officer.
1.2 During
his employment with the Company, the Employee will perform Employee’s duties
faithfully and to the best of Employee’s ability and in a manner consistent with
Employee’s full-time status. During Employee’s employment with the
Company, Employee agrees not to actively engage in any other employment,
occupation, or consulting activity for any direct or indirect remuneration
without the prior approval of the Company’s CEO.
1.3 Term. This
Agreement shall commence as of the Effective Date and continue until terminated
pursuant to the Section 4 of this Agreement.
2. Compensation and Related
Matters.
2.1 Salary. As
of the Effective Date, the Company will pay to the Employee an annualized base
salary of $175,000.00 per annum, provided that such amount may be increased from
time to time as determined by the Compensation Committee (“Compensation Committee”) of
the Company’s Board of Directors (the “Board”) at its discretion (the
“Base
Salary”). Any Base Salary shall be earned by the Employee on a
pro rata basis as Employee performs services for the Company and shall be paid
in monthly or other installments in accordance with the general practice of the
Company from time to time.
2.2 Bonus. The
Employee shall be eligible to receive bonus payments from time to time, in an
amount as determined in the sole discretion of the Compensation
Committee.
2.3 Vacation. The
Employee shall be entitled to four (4) weeks of vacation in each fiscal year,
provided that such amount may be increased from time to time as determined by
the Compensation Committee at its discretion, and provided that such vacation
shall be earned and used by Employee in accordance with the Company’s vacation
policy as it may change from time to time. The Employee shall also be
entitled to all paid holidays and personal days given by Company to its
employees generally.
2.4 Expenses. The
Company will reimburse the Employee for all reasonable business expenses
incurred in performing services hereunder, upon the Employee’s presentation to
the Company from time to time of itemized accounts describing such expenditures,
all in accordance with the Company’s policy in effect from time to time with
respect to the reimbursements of business expenses.
2.5 Withholding. All
payments to the Employee under this Agreement shall be subject to required
withholding for federal and state income taxes, FICA contributions and other
required deductions.
3. Stock Option
Grant. The Company shall, at its next Compensation Committee
meeting, grant to Employee stock options under the Sajan Inc. Amended and
Restated 2004 Long-Term Incentive Compensation Plan to purchase up to 250,000
shares of the Company’s common stock. The option shall have a
ten-year term and an exercise price equal to the fair market value on the date
of the grant, and the option will vest according the following vesting schedule
provide that Employee is employed with the Company on the applicable vesting
date: (i) 62,500 shares on June 1, 2011; (ii) 62,500 shares on June 1, 2012;
(iii) 62,500 shares on June 1, 2013; and (iv) 62,500 shares on June 1,
2014. The vesting of all unvested options will accelerate and all
unvested options will become vested upon a Change in Control of the
Company. For purposes of this Section, a “Change in Control” has the
meaning set forth in the Sajan Inc. Amended and Restated 2004 Long-Term
Incentive Plan, as that Plan may be amended from time to time. The
option shall be evidenced by and conditioned on the Employee’s signing of a
stock option agreement between the Company and Employee on terms deemed
appropriate by the Company.
4. Termination. This
Agreement may be terminated as set forth in this Section.
4.1 By the Company for Death or
Disability or For Cause. The Company may terminate the
Employee’s employment at any time for any reason or for no reason, including but
not limited to for death, a disability that renders Employee unable to perform
the essential functions of his job with or without reasonable accommodation, or
for Cause. For purposes of this Agreement, “Cause” is defined as (i)
theft, embezzlement, or a material act of dishonesty by Employee, (ii)
Employee’s commission of a felony or crime of moral turpitude, (iii) Employee’s
gross misconduct, (iv) Employee’s continued substantial failure to satisfy
Employee’s employment duties after Employee has received a written demand for
performance from the Company that specifically sets forth the factual basis for
the Company’s belief that Employee has not substantially performed Employee’s
duties and Employee has failed to cure his substantial failure to satisfy his
employment duties to the satisfaction of the Company’s Chief Executive Officer
within 30 days of his receipt of such written demand; or (v) Employee’s
continued material breach of this Agreement or any confidentiality or
proprietary information agreement between Employee and the Company or any
material policy of the Company after Employee has received a written notice that
specifically sets forth the factual basis for the Company’s belief that Employee
has breached this Agreement or any confidentiality or proprietary information
agreement between Employee or any material policy of the Company; provided, that
any breach of Sections 6, 7, 8, or 9 of this Agreement shall constitute a
continuing material breach which is not subject to cure by
Employee.
4.2 By the Employee for Good
Reason. The Employee may terminate Employee’s employment
hereunder for no reason or for Good Reason. For purposes of this
Agreement, “Good Reason”
is defined as either of the following events occurring without Employee’s
advance consent provided that the Company has not cured such event within 30
days after receiving written notice from Employee of such event: (a) a failure
by the Company to comply with any material provision of this Agreement; or (b) a
material diminution in Employee’s responsibilities, authority or Base
Salary. Employee must provide written notice to the Company of the
existence of the Good Reason within 30 days of the initial existence of the
condition. If Company remedies the condition within the 30 day period
beginning on the date the written notice of the condition is received, Employee
will not be entitled to severance under Section 5.4. Any Good Reason
termination under this Section 4.2 must occur within 90 days following the
initial existence of the Good Reason Condition.
4.3 Notice of
Termination. Any termination of the Employee’s employment by
the Company or by the Employee shall be communicated by written notice of
termination to the other party hereto, which shall describe whether such
termination was for Cause. The parties acknowledge that any written
notice of noncompliance delivered under Section 4.2 does not constitute the
notice of termination of this Agreement required by this Section
4.3.
4.4 Date of
Termination. The “Date of Termination” shall
mean: (a) if the Employee’s employment is terminated by Employee’s
death, the date of Employee’s death; and (b) if the Employee’s employment is
terminated for any other reason, the date on which a notice of termination is
given or, in the event of termination by the Employee, the date on which the
Employee stops providing services to the Company.
5. Compensation Upon
Termination.
5.1 Disability. Upon
Employee’s termination for a disability, the Employee shall be entitled to all
amounts to which the Employee is entitled pursuant to Company disability plans,
programs and policies all in accordance with the terms thereof.
5.2 Death. If
the Employee’s employment is terminated by Employee’s death, the Company shall,
within ten (10) days following the date of the Employee’s death, pay to the
Employee’s estate or the Employee’s designated beneficiary any unpaid portion of
the Base Salary through the Date of Termination, and, thereafter, payment of any
other amounts to which the Employee is entitled pursuant to Company death
benefit plans, programs and policies in accordance with the terms
thereof.
5.3 By the Company For Cause or
By the Employee without Good Reason. If the Employee’s
employment is terminated by the Company for Cause or by the Employee for any
reason other than the Company’s uncured breach of the terms hereof, the Company
shall pay the Employee any unpaid portion of the Base Salary and any accrued
vacation time through the Date of Termination at the rate in effect at the time
notice of termination is given and the Company shall have no further obligations
to the Employee under this Agreement.
5.4 By the Company Without Cause
or by the Employee For Good Reason. If (a) the Company
terminates the Employee’s employment without Cause, or (b) the Employee properly
terminates employment for Good Reason pursuant to Section 4.2, the Employee will
be entitled to severance pay in a total gross amount equal to six (6)
months of Employee’s ending Base Salary with the Company ( the “Severance Payment”), which
will be paid in accordance with the Company’s regular payroll schedule
commencing on the first payroll date following Employee’s signing of the general
release agreement discussed in Section 5.5. below and the expiration of any
rescission period set forth in such release agreement. In addition
any stock options that are due to be vested within six months from the Date of
Termination shall become vested and exercisable. Notwithstanding
anything herein to the contrary, in no event shall any portion of the Severance
Payment be paid to Employee later than the last day of the second taxable year
of the Employee following the taxable year in which the termination of
employment occurs.
5.5 Conditions to Receive
Severance Payments. Notwithstanding anything to the contrary
in this Agreement, the Severance Payment will be provided to the Employee only
to the extent the Employee satisfies and complies with the following
conditions: (i) the Employee complies with all surviving provisions
of this Agreement, including without limitation Sections 6, 7, 8, and 9 and any
additional non-competition agreement, non-solicitation agreement,
confidentiality agreement or invention assignment agreement signed by Employee;
and (ii) Employee executes and delivers to the Company, and does not revoke, a
full general release, in a form reasonably acceptable to the Company, releasing
all claims, known or unknown, that Employee may have against the Company, and
any subsidiary, affiliate or related entity, their officers, directors,
employees and agents, arising out of or any way related to Employee’s employment
or termination of employment with the Company.
6. Disclosure of Confidential
Information.
6.1 Definition of Confidential
Information. For purposes of this Agreement, “Confidential Information”
means any information that is not generally known to the public that relates to
the existing or reasonably foreseeable business of the Company which has been
expressly or implicitly protected by the Company or which, from all of the
circumstances, the Employee knows or has reason to know that the Company intends
or expects the secrecy of such information to be
maintained. Confidential Information includes, but is not limited to,
information relating to the Technology (as defined below), information contained
in or relating to the development plans or proposals, marketing plans or
proposals, strategies, financial statements, budgets, pricing formulas, customer
and vendor information, employee information, technical information, know-how,
trade practices, trade secrets and other proprietary information of the Company,
whether written, oral or communicated in another type of medium, whether
disclosed directly or indirectly, whether disclosed prior to or after the date
of this Agreement, whether originals or copies and whether or not legal
protection has been obtained or sought under applicable law. The
Employee shall treat all such information as Confidential Information regardless
of its source and whether or not marked as confidential. For purposes
of this Agreement, Confidential Information shall not include information that
has become public through no fault of the Employee.
6.2 Technology. The
Employee recognizes that the Company is engaged in the business of developing
proprietary language translation and globalization solutions and other
technologies (hereinafter the “Technology”), and that such
Technology is kept in strict confidence by the Company. The Employee
is aware that the Technology is vital to the Company’s success. The
Employee further understands that the success of the Company depends, to a great
extent, on its ability to protect Confidential Information, including that
comprising the Technology, from unauthorized disclosure, use, or
publication. Inasmuch as the Employee will gain knowledge of or have
access to the Confidential Information about the Technology, in whole or in
part, in the course of employment, the Employee acknowledges that the Company is
and will be entrusting the Employee with this valuable
information. The Employee understands that the Company is engaged in
a continuous program of research, development, and marketing of its present and
future solutions, services, and products, and the enhancement of its
Technology.
6.3 The Employee Shall Not
Disclose Confidential Information. The Employee will not,
during Employee’s employment or after Employee’s employment ends, regardless of
the reason for such separation of employment, use, show, display, release,
discuss, communicate, divulge or otherwise disclose Confidential Information to
any person, firm, corporation, association or other entity for any reason or
purpose whatsoever, except in connection with and only to the extent required
for the performance of the Employee’s obligations hereunder, without the prior
written consent or authorization of a duly authorized officer of the Company.
This covenant and restriction shall continue to be
binding upon the Employee after termination of any employment or other
relationship with the Company and is an independent covenant.
6.4 Title. All
documents or other tangible or intangible property relating in any way to the
business of the Company which are conceived or generated by the Employee in
performing Employee’s duties for the Company or come into the Employee’s
possession during the term of this Agreement shall be and remain the exclusive
property of the Company. At termination or whenever requested to do
so by the Company, the Employee agrees to return all such documents, and
tangible and intangible property, and all copies thereof, including, but not
limited to, all records, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, magnetic tapes, computer
files or disks, calculations or copies thereof, which are the property of the
Company or which relate in any way to the business, customers, products,
practices or techniques of the Company, and all other property of the Company,
including, but not limited to, all documents.
6.5 Compelled
Disclosure. In the event a third party seeks to compel
disclosure of Confidential Information by the Employee by judicial or
administrative process, the Employee shall promptly notify the Board of such
occurrence and furnish to the Board a copy of the demand, summons, subpoena or
other process served upon the Employee to compel such disclosure, and will
permit the Company to assume, at its expense, but with the Employee’s
cooperation, defense of such disclosure demand. In the event that the
Company refuses to contest such third party disclosure demand under judicial or
administrative process, or if a final judicial order is issued compelling
disclosure of Confidential Information by the Employee, the Employee shall be
entitled to disclose such information in compliance with the terms of such
administrative or judicial process or order without violating Employee’s
obligations under this Agreement.
7. Inventions.
7.1 Employee Original
Works. Employee represents and warrants that, as of the
Effective Date, he has not conceived of or reduced to practice, either alone or
jointly with others, any Inventions (as defined in Section 7.2
below).
7.2 Definition of
Inventions. The term “Inventions” for purposes of
this Agreement shall mean developments, designs, creations, code, improvements,
original works of authorship, formulas, processes, know-how, techniques,
inventions, or other protectable proprietary information or developments,
whether or not protection has been obtained or applied for under applicable
laws.
7.3 Disclosure of
Inventions. The Employee hereby agrees to disclose promptly to
the Company (or any persons designated by it) all Inventions: (i)
which are made or conceived or reduced to practice by the Employee, either alone
or jointly with others, during Employee’s employment with the Company, or which
are reduced to practice during the period of twelve (12) months following the
end of Employee’s employment with the Company, regardless of the reason for such
separation of employment, that relate to or are useful in the present or future
business of the Company; or (ii) which result from tasks assigned the Employee
by the Company or the Board under this Agreement, or from the Employee’s use of
premises or other resources owned, leased or contracted for by the
Company.
7.4 Ownership of
Inventions. The Employee agrees that all Inventions described
in Section 7.3 which the Company, in its sole discretion, determines to be
related to or useful in its business or its research or development, or which
result from work performed by the Employee for the Company, shall be the sole
and exclusive property of the Company and its assigns, and the Company and its
assigns shall have the right to use or to apply for patents, copyrights or other
statutory or common law protections for such Inventions in any and all
countries. The Employee further agrees to assist the Company in every
proper way (but at the Company’s expense) to obtain and from time to time
enforce patents, copyrights and other statutory or common law protections for
such Inventions in any and all countries. To that end, the Employee
will execute all documents for use in applying for and obtaining such patents,
copyrights and other statutory or common law protections therefor and enforcing
the same, as the Company may desire, together with any assignments thereof to
the Company or to persons or entities designated by the Company. The
Employee’s obligations under this Section 7.4 shall continue beyond the end of
Employee’s employment with the Company, regardless of the reason for such
separation of employment, but the Company shall compensate the Employee at a
reasonable rate after such termination for time actually spent by the Employee
at the Company’s request in providing such assistance.
7.5 Works for
Hire. The Employee hereby acknowledges that all original works
of authorship which are made by the Employee (solely or jointly with others)
within the scope of the Employee’s engagement by the Company under this
Agreement, which are protectable by copyright are “works for hire”, as that term
is defined in the United States Copyright Act (17 U.S.C., Section
101).
7.6 Power of
Attorney. In the event the Company is unable, after reasonable
effort, to secure the Employee’s signature on any document needed to apply for,
obtain or enforce any intellectual property rights relating to any Invention
with respect to which the Employee has made an inventive contribution, whether
because of the Employee’s unavailability, or physical or mental incapacity, or
for any other reason whatsoever, the Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as the
Employee’s agents and attorneys-in-fact to act for and in the Employee’s behalf
and stead solely for and in connection with the execution and filing of any such
documents with the same legal force and effect as if such acts were performed by
the Employee.
8. Employee’s Representations
and Warranties.
8.1 No Breach of Prior
Agreements. The Employee represents and warrants that
performance of the terms of this Agreement as a employee of the Company does not
and will not cause the Employee to breach any agreement, commitment or
understanding the Employee has with any other party, whether formal or informal,
to assign to such other party inventions the Employee may hereafter make, or to
keep in confidence proprietary information of such other party which the
Employee acquired or learned prior to the Employee’s engagement by the
Company.
8.2 Proprietary Information of
Others. The Employee represents and warrants that the Employee
has not brought and will not bring to the Company or use for the benefit of the
Company, any materials or documents of a former employer (which, for purposes of
this paragraph, shall also include persons, firms, corporations and other
entities for which the Employee has acted or is currently acting, as an
independent contractor or employee) that are not generally available to the
public or to the trade, unless the Employee has obtained written authorization
from any such person or entity permitting the Employee to retain and use said
materials or documents. With respect to any materials or documents
that the Employee may bring to the Company for use in the course of this
Agreement, the Employee hereby further represents and warrants that the
Employee’s use (or the Company’s use) of such materials or documents will not
violate the intellectual property rights of any former employer of the Employee,
or any other party.
9. Subsequent
Competition.
9.1 Customers and
Vendors. During Employee’s employment with the Company and for
an additional period of one (1) year following the end of Employee’s employment,
regardless of the reason for such separation of employment (the “Noncompete Period”), the
Employee shall not, either directly or indirectly, either alone or in concert
with others, solicit or entice or in any way divert any customer or vendor of
the Company as of the date of any such termination, to do business with any
business entity in competition with the Company, if the Employee’s knowledge of
the identity of, and other pertinent information about, any such customer or
vendor was learned by the Employee in the course and scope of this Agreement,
and could not otherwise be obtained from public sources or records.
9.2 Business. During
the Noncompete Period, the Employee agrees not to plan or otherwise take any
preliminary steps, either alone or in concert with others, to set up or engage
in any business enterprise, or become an employee, consultant or advisor to any
business enterprise, that is a “Competitor” (as defined below) of the
Company. During the Noncompete Period, the Employee will not accept
any employment from, or engage in any activities with, any entity which the
Company determines in good faith is a Competitor of the Company. For
the purposes of this Section 9.2, a “Competitor” is any business
enterprise that is involved in the development and/or marketing of (a) services,
products or technology utilized in language translation or globalization, or (b)
any other services, products or technology that the Company has developed or
sold in the past two years immediately prior to such date, is currently
developing or selling, or which the Company could reasonably be expected to
develop or sell in the future. For the purpose of clarity, nothing in
this section 9.2 shall constitute a waiver or termination of the provisions of
this Agreement regarding the non-disclosure of Confidential Information or the
non-solicitation of the Company’s customers, vendors, or employees.
9.3 Solicitation of Company
Employees. During the Noncompete Period, the Employee will
not, directly or indirectly, alone or in concert with others, induce or attempt
to induce for Employee’s benefit or that of any third party or solicit any of
the Company’s employees, officers, suppliers, consultants, independent
contractors or vendors who have held any such position or provided any goods or
services to the Company at any time during twelve (12) months preceding the date
of termination of the Employee’s employment for employment or other engagement
by any other company which is, by any reasonable standard, in competition with
the Company. The Employee understands that the above restraint is
necessary in order to reduce the risk that the Company’s Confidential
Information will be disclosed to and used by its competitors to its
detriment.
9.4 Subsequent
Notification. Upon the termination of this Agreement, the
Employee hereby authorizes the Company to notify any other party, including
without limitation, the Employee’s future employers, future partners, and
customers of the Company, as to the existence of this Agreement, and the
existence of the Employee’s covenants and responsibilities with respect to the
Confidential Information entrusted to the Employee hereunder.
9.5 Nature of
Restrictions. Nothing contained in this Agreement shall be
construed to prevent the Employee from engaging in a lawful profession, trade,
or business after the termination of this Agreement. This Agreement
shall be construed only as one which prohibits the Employee from engaging in
acts which are unfair to the Company, and which are in violation of the
confidence and trust reposed in the Employee by the Company with respect to
their Confidential Information and intellectual property.
9.6 Claim Not a
Defense. The existence of any claim or cause of action by
Employee against the Company shall not constitute a defense to the enforcement
of Employee’s obligations herein.
10. Survival of Restrictive
Covenants. The provisions of Sections 6, 7, 8, and 9 of this
Agreement shall survive the termination of this Agreement and the end of
Employee’s employment with the Company, regardless of the reason for the
termination of this Agreement or the end of Employee’s employment, and shall be
binding upon the Employee following the end of Employee’s employment with the
Company. Such covenants shall be deemed and construed as separate
agreements independent of any other provisions of this Agreement; and the
existence of any claim or cause of action by the Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of any or all such
Sections.
11. Remedies. The
Employee acknowledges that irreparable injury will result to the Company if the
Employee violates any of the covenants in Sections 6 (Disclosure of Confidential
Information), 7 (Inventions), 8 (Employee’s Representations and Warranties) and
9 (Subsequent Competition) of this Agreement, and that the Company cannot
adequately ascertain or quantify its damages or be compensated therefor by money
damages. The Employee hereby expressly agrees that the Company shall
be entitled, in addition to damages and any other remedies provided by law, to
reimbursement from the Employee of the Company’s reasonable attorneys’ fees and
costs incurred in successfully enforcing its rights under this Agreement; and
further agrees to the entry by a court of an injunction or other equitable
remedy enjoining the Employee’s breach without the necessity of proof of actual
damages respecting any such violation by the Employee.
12. Arbitration. Any
claim, dispute or controversy arising out of this Agreement, the interpretation,
validity or enforceability of this Agreement or the alleged breach thereof shall
be submitted upon the request of either party to binding arbitration in
Minneapolis, Minnesota; provided, however, that this arbitration provision shall
not preclude the Company from seeking injunctive relief as provided in Section
11. Such arbitration shall proceed in accordance with the
then-governing rules of the American Arbitration Association (“AAA”) for Employment Dispute
Resolutions or Commercial Arbitration, at the option of the
petitioner. Judgment upon the award rendered may be entered and
enforced in any court of competent jurisdiction. It is agreed that
the parties shall choose a single, neutral arbitration from among a panel of not
less then seven (7) proposed arbitrators and that the parties may have no more
than two (2) panels of arbitrators presented to them by the AAA. The
parties agree that they will share equally the fees of the arbitrator, and they
shall each be responsible for their own attorneys’ fees and costs and any filing
fee paid by them unless the arbitrator determines that one party shall pay a
greater portion of such costs and fees and states the justification
therefor. THE EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION WHICH
DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS
AGREEMENT, EMPLOYEE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR
IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION,
AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE’S RIGHT TO A
JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS
OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,
DISCRIMINATION CLAIMS.
13. Miscellaneous.
13.1 Recitals. The
recitals to this Agreement are true and correct and constitute a part of this
Agreement.
13.2 Assignment. The
rights and benefits of the Company and its permitted assigns under this
Agreement shall be fully assignable and transferable to any other entity
(subject to that entity’s assumption of the obligations
hereunder): (i) which is an affiliate of the Company, as that term is
defined under federal securities law; or (ii) which is not an affiliate and with
which the Company has merged or consolidated, or to which it may have sold
substantially all its assets in a transaction in which it has assumed the
liabilities of the Company under this Agreement. In the event of any
such assignment or transfer, all covenants and agreements hereunder shall inure
to the benefit of, and be enforceable by or against the successors and assigns
of the Company. This Agreement shall not be assignable by the
Employee without the prior written consent of the Company, but all obligations
and agreements of the Employee hereunder shall be binding upon and enforceable
against the Employee and Employee’s successors.
13.3 Notices. All
notice, requests, and other communications from any of the parties hereto to
another shall be in writing and shall be considered to have been fully given or
served if personally delivered, telecopied, sent by national overnight delivery
service, or sent by first class, certified or registered mail, return receipt
requested, postage prepaid, to the party at the party’s or its address as
provided below, or to such other addresses such party may hereinafter designate
by written notice to the other parties: (a) if to the Company, to Sajan, Inc.,
625 Whitetail Blvd., River Falls, WI 54022, Attention: Board of Directors,
or (b) if to the Employee, to the address last shown for Employee in the records
of the Company. Such notice shall be deemed to be received when
delivered if delivered personally, upon receipt of electronic sent confirmation
(or other confirmation of receipt) if telecopied, the next business day if sent
by a national overnight delivery service, or three (3) business days after
the date mailed if sent by certified or registered mail. Any notice
of any change in such address shall also be given in the manner set forth
above. Whenever the giving of notice is required, the giving of such
notice may be waived in writing by the party entitled to receive such
notice.
13.4 Governing Law;
Jurisdiction. This Agreement, and the legal relations between
the parties, shall be governed by, and construed in accordance with, the laws of
the State of Minnesota without regard to such state’s conflicts or choice of law
provisions. The parties consent to jurisdiction of the courts of such
state and/or its Federal District Courts, and agree that venue is proper in
Hennepin County, for those matters not subject to arbitration.
13.5 Entire Agreement;
Amendment. This Agreement constitutes the entire agreement,
and supersedes all other prior and contemporaneous agreements and undertaking,
both written and oral, between the parties hereto relating to the subject matter
hereof. There are no representations, warranties, covenants,
statements, conditions, terms of obligations other than those contained herein
or relating to the subject matter hereof. No amendments or
modifications to or variations of this Agreement shall be deemed valid unless in
writing and executed by the Employee and the Company.
13.6 Meanings of Pronouns;
Singular and Plural Words. All pronouns used in this Agreement
shall be deemed to refer to the masculine, feminine, neuter, singular and
plural, as the identity of the person to which or to whom reference is made may
require. Unless the context in which any word is used shall clearly
indicate to the contrary, words used in the singular shall include the plural,
and words used in the plural shall include the singular.
13.7 Interpretation. When
a reference is made in this Agreement to Sections or Subsections such reference
shall be to a Section or Subsection of this Agreement unless otherwise
indicated. Whenever the words “include,” “includes,” or “including”
are used in this Agreement, they shall be deemed to be followed by the words
“without limitation.”
13.8 Benefit. This
Agreement shall inure to the benefit of and be enforceable by the Employee or by
the Employee’s personal and legal representatives, executors, administrators,
heirs, devisees and legatees.
13.9 No
Waiver. No delay on the part of either party in exercising any
right hereunder shall operate as a waiver of such right, nor shall any waiver,
express or implied, by either party of any right hereunder, or of any failure to
perform hereunder or breach hereof by either party, constitute or be deemed to
constitute a waiver of any other failure to perform hereunder or breach hereof
by either party, whether of a similar or dissimilar nature thereto.
13.10 Attorneys’
Fees. If any litigation shall ensue between the parties
concerning the interpretation of or performance under this Agreement, the
prevailing party shall recover from the non-prevailing party its reasonable
hourly attorneys’ fees and other expenses, if and to the extent fixed
by the court.
13.11 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which counterparts shall together
constitute one and the same instrument.
13.12 Headings. The
headings used in this Agreement are for the convenience of the parties and shall
not be deemed to be a part of this Agreement.
13.13
ADVICE OF
COUNSEL. EMPLOYEE ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, EMPLOYEE HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL, AND EMPLOYEE HAS READ AND UNDERSTANDS ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
(Remainder
of Page Intentionally Left Blank)
IN
WITNESS WHEREOF, the parties have executed and delivered this Employment
Agreement on the day and year first written above.
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SAJAN,
INC.
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______________________________________
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By:___________________________________
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Its:
___________________________________
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______________________________________
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Timothy
Clayton, An
Individual
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(Signature
Page to Sajan, Inc. Employment Agreement