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Exhibit 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of September 16, 1996, is made and
entered into between Quarterdeck Corporation, a Delaware corporation
("Quarterdeck") and Xxxxxx Xxxxx (the "Employee").
1. EMPLOYMENT. Quarterdeck shall employ the Employee
and the Employee shall enter the employ of Quarterdeck. This Agreement shall
have a term of two years unless sooner terminated in accordance with Section 5
of this Agreement; provided, however, that Quarterdeck may terminate this
Agreement and Employee's employment "at will" subject to Section 5(c) hereof.
At the end of such two-year period, this Agreement shall automatically be
renewed for successive one-year periods unless within 30 days prior to the end
of the two-year period or any successive one-year period either party gives the
other party written notice of its desire not to renew this Agreement.
2. POSITION AND DUTIES. During the term of employment,
the Employee shall be a full-time employee of Quarterdeck and shall devote all
of his business time and attention to the performance of his duties to
Quarterdeck. Employee shall initially serve as a Vice President of Quarterdeck
and General Manager of the Utilities Business Unit.
3. COMPENSATION AND RELATED MATTERS.
(a) Annual Base Salary. The Employee shall
receive an aggregate base salary ("Annual Base Salary") of One Hundred
Thirty-Five Thousand Dollars ($135,000) per annum.
(b) Bonus Compensation. Employee shall be
eligible to receive an annual target bonus in an amount of Sixty-Seven Thousand
Five Hundred Dollars ($67,500) ("Incentive Bonus Compensation"), payable on a
quarterly basis, determined in accordance with the terms of the Management by
Objective Plan of Quarterdeck, or any successor or replacement plan adopted by
Quarterdeck and contingent upon attainment of objectives mutually agreed to by
Employee and the Chief Executive Officer of Quarterdeck.
(c) Benefits. On the first month of the following
30 days of employment, you will be eligible for health, dental, vision, life
and long-term disability benefits subject to the terms, conditions, and
limitations contained in the applicable plan documents which may be modified by
Quarterdeck in the future. During the term of employment, the Employee shall
be entitled to
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participate in or receive benefits under any other employee benefit plan
generally made available by Quarterdeck to individuals at the level of
Employee, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans or arrangements for individuals at the
level of Employee; provided, however, that Employee shall be entitled to four
weeks paid vacation per year.
(d) Expenses. Quarterdeck shall reimburse the
Employee for all reasonable travel and other business expenses incurred by the
Employee in the performance of his duties under this Agreement upon Employee's
submission of appropriately itemized documentation thereof in accordance with
Quarterdeck's reimbursement policy.
(e) Options. Employee will be granted options to
purchase 75,000 shares of the common stock of Quarterdeck under Quarterdeck's
Employee Stock Option Plan. Such options shall be subject to approval of the
Board of Directors of Quarterdeck or a committee thereof. The options shall
have an exercise price equal to the fair market value of the Quarterdeck common
stock on the date of grant. The options shall vest 25% per year over a
four-year period.
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4. COMPETITION.
(a) The Employee agrees that for the term of this
Agreement and for the Severance Period (as defined below), if applicable, he
shall not, directly or indirectly, as principal, agent, employee, employer,
consultant, stockholder, partner or in any other individual or representative
capacity, engage in any business that competes, directly or indirectly, with
the business of Quarterdeck or any of its subsidiaries. Notwithstanding
anything to the contrary herein, Employee may, without violating the provisions
of this Section 4, purchase and hold up to 5% of any entity whose shares are
publicly traded on the Nasdaq National Market or any U.S. stock exchange,
whether or not such entity is engaged in a Competitive Business. In addition,
Employee agrees that for a period of six months after the termination of his
employment, Employee shall not recruit, attempt to hire, solicit, or assist
others, in recruiting or hiring, any person who was an employee of or
consultant to Quarterdeck or any of its subsidiaries at the time of termination
of his employment or during a period of three months prior thereto. Any
provision of this Section 4 that is deemed invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction and subject to this paragraph be
ineffective to the extent of such invalidity or unenforceability, without
affecting in any way the remaining provisions of this paragraph in such
jurisdiction or rendering that or any other provisions of this Agreement
invalid or unenforceable in any other jurisdiction. If any covenant should be
deemed invalid or unenforceable because of its scope, geographical area or
duration, or any combination thereof, such covenant shall be modified and
reformed so that the scope, geographic area and duration of the covenant is
reduced only to the minimum extent necessary to render the modified covenant
valid and enforceable.
5. TERMINATION. The Employee's employment hereunder may
be terminated by Quarterdeck or the Employee, as applicable upon expiration of
this Agreement pursuant to Section 1 of this Agreement, and under the following
circumstances:
(a) Death. The Employee's employment hereunder
shall terminate upon his death. In the case of the Employee's death,
Quarterdeck shall pay to the Employee's beneficiaries or estate, as
appropriate, (i) promptly after the Employee's death, the unpaid Annual Base
Salary to which he is entitled pursuant to subsection 3(a) prorated through the
date of termination and (ii) as soon as practicable after the close of
Quarterdeck's fiscal quarter in which the Employee's death occurs, a prorated
portion of any unpaid Incentive Bonus Compensation. This subsection 5(a) shall
not limit the entitlement of the Employee's estate or beneficiaries to any
death or other benefits then available to the Employee under any life insurance
or other benefit plan or policy which is maintained by Quarterdeck for the
Employee's benefit.
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(b) Cause. Quarterdeck may terminate the
Employee's employment hereunder for Cause (as defined below). In the case of
the Employee's termination for Cause, Quarterdeck shall promptly pay to the
Employee the unpaid Annual Base Salary to which he is entitled pursuant to
subsection 3(a) prorated through the date the Employee is terminated and the
Employee shall be entitled to no other compensation. For purposes of this
Agreement, Quarterdeck shall have "Cause" to terminate the Employee's
employment hereunder upon a finding by the Board of Directors of Quarterdeck
(the "Board") that the Employee has (1) engaged in acts or omissions with
respect to Quarterdeck or the Company or any subsidiary of Quarterdeck or the
Company which constitute intentional misconduct, fraud or dishonesty; (2)
breached any non-competition covenant with the Company or Quarterdeck; (3)
committed willful or intentional acts constituting a material breach of this
Agreement; (4) been convicted of a felony or crime of moral turpitude or (5)
committed other acts constituting intentional misconduct or dishonesty that in
the reasonable discretion of the Board are likely to have a material adverse
effect on the Company, (6) consistently failed to perform at a level
commensurate with his position and compensation level or habitual neglect of
duties, or (7) disregarded policies of Quarterdeck that cause material loss or
damage to Quarterdeck.
(c) At Will. Quarterdeck may terminate the
Employee's employment hereunder "at will" at any time, provided, however, that
if such termination is prior to the expiration of the term of this Agreement
and is not for Cause, Quarterdeck shall (i) promptly pay to Employee the unpaid
Annual Base Salary to which he is entitled pursuant to subsection 3(a) prorated
through the date of termination, (ii) pay to Employee as soon as practicable
after the close of Quarterdeck's fiscal quarter in which such termination
occurs, a prorated portion of any unpaid Incentive Bonus Compensation to which
he would have been entitled to, (iii) subject to continued compliance with
Section 4 and the other terms of this Agreement that by their terms remain
applicable after termination of employment and execution of a release in a form
reasonably satisfactory to Quarterdeck, pay to Employee six months (the
"Severance Period") Annual Base Salary (at Employee's then current level),
payable over such six-month period in accordance with Quarterdeck's normal
payroll policy.
(d) Disability.
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(i) If Quarterdeck determines in good
faith, after considering all relevant medical evidence, that the Employee has
incurred a Disability (as defined below) during the term of employment,
Quarterdeck shall give the Employee written notice of termination of the
Employee's employment. In such event, the Employee's employment with
Quarterdeck shall terminate effective upon receipt of such notice by the
Employee. Quarterdeck shall pay to the Employee, upon the Employee's
termination, the unpaid Annual Base Salary to which he is entitled pursuant to
subsection 3(a) prorated through the Employee's termination. This subsection
5(c) shall not limit the entitlement of the Employee to any disability or other
benefits then available to the Employee under any disability insurance or other
benefit plan or policy which is maintained by Quarterdeck for the Employee's
benefit.
(ii) For the purpose of this Section,
"Disability" shall mean the Employee's failure to perform his duties to
Quarterdeck on a full-time basis for a total of six months during any
twelve-month period as a result of incapacity due to a mental or physical
illness or injury which is determined by a physician selected by the Board and
acceptable to the Employee or the Employee's legal representative (such
agreement as to acceptability not to be withheld, delayed or conditioned
unreasonably).
(e) Voluntarily by Employee. Employee may
terminate her employment hereunder at any time upon 45 days' prior written
notice to Quarterdeck. Quarterdeck shall pay to Employee, upon Employee's
termination, the unpaid Annual Base Salary to which she is entitled pursuant to
subsection 3(a) prorated through Employee's termination.
6. CONFIDENTIAL INFORMATION.
6.1 Disclosure. Employee may have knowledge of,
and during the term of this Agreement, Quarterdeck or its subsidiaries may
supply to Employee, certain trade secrets and Confidential Information (as
hereinafter defined). Employee agrees to limit its use of such material to
what is necessary to perform the services under this Agreement and to abide by
all restrictions imposed by Quarterdeck or its subsidiaries on the use of such
material including the restrictions contained in this Agreement. Employee
shall not, directly or indirectly, communicate, divulge, disclose, reveal,
report, publish or transfer to any person or entity, or use to the detriment of
Quarterdeck or use for the benefit of Employee or any other person or entity,
or misuse in any way, any Confidential Information or trade secrets of
Quarterdeck or its subsidiaries, without the prior written consent of the chief
executive officer and the general counsel of Quarterdeck. Employee shall
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take such precautions as shall be reasonably calculated to keep strictly
confidential such Confidential Information and trade secrets and to prevent the
unauthorized disclosure thereof, provided, however, that Employee shall be
entitled to disclose such Confidential Information, if necessary, in order to
defend any claim under federal or state laws, rules or regulations or pursuant
to an order of a court or government agency, provided, however, further that in
the case of any such disclosure, the disclosure shall be limited to the
greatest extent reasonably possible under the circumstances and Employee shall
use his best efforts to provide Quarterdeck with sufficient advance notice
prior to the disclosure to permit Quarterdeck to seek a protective order or
other order protecting the Confidential Information from public disclosure.
Employee agrees that all Confidential Information shall be the sole property of
Quarterdeck (or, as applicable, its subsidiaries). After termination of this
Agreement, Employee shall not utilize or divulge in any way such Confidential
Information and trade secrets. Employee's obligations under this Section 6.1
shall continue beyond the termination of this Agreement for any reason.
Employee's obligations hereunder are in addition to Employee's obligation under
any other confidentiality agreement entered into between Quarterdeck and
Employee.
6.2 Confidential Information. For the purposes
of this Agreement, the term "Confidential Information" shall mean information
or material proprietary to Quarterdeck or any related or affiliated person or
entity or any information or material designated as Confidential Information by
Quarterdeck or any related or affiliated person or entity, whether or not owned
or developed by Quarterdeck, which Employee develops or which Employee may
obtain knowledge of or access to, through or as a result of, Employee's prior
or present relationship with Quarterdeck or any related or affiliated person or
entity (including information conceived, originated, discovered or developed in
whole or in part by Employee while acting hereunder). Without limiting the
generality of the foregoing, Confidential Information shall include, but is not
limited to, the following types of information and other information of a
similar nature (whether or not reduced to writing or still in development):
information that has been created, discovered, developed, or otherwise has
become known to Quarterdeck or its subsidiaries and/or in which property rights
have been assigned or otherwise conveyed to Quarterdeck or its subsidiaries,
which has commercial value in the businesses in which Quarterdeck is engaged
including, without limitation, works of authorship, trade secrets, processes,
software and firmware (including any operating programs, whether in object
code, source code or any other form, whether or not embedded in a physical
medium), magnetic media, prototypes, formulae, machines, components,
inventions, creations, systems, designs, methods, materials, assembly
techniques, structures, pending patent applications, compositions,
improvements, ideas, specifications or arts relating to products and services,
or to the manufacture, assembly, testing, sale and service of products and
services, as well as financial projections, financing plans, marketing plans,
strategies, forecasts, customer lists, and other business information related
to present or prospective business activities of Quarterdeck or its
subsidiaries, and documents, records, notebooks, drawings, photographs and
similar repositories or representations of such information. The term
"Confidential
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Information" shall not include information which (i) is or becomes generally
available to the public other than as a result of a disclosure by the Employee
in violation of this Agreement, (ii) is or becomes available to the Employee on
a non-confidential basis from a source other than Quarterdeck, provided that
such source is not known by the Employee to be furnishing such information to
the Employee in violation of a confidentiality agreement with or other
obligation of secrecy to Quarterdeck, or (iii) is derived from information that
is not Confidential Information pursuant to any of the foregoing clauses and
does not contain any Confidential Information.
6.3 Delivery Upon Termination. Upon the
termination for whatever reason of this Agreement, Employee shall deliver to
Quarterdeck all drawings, blueprints, computer disks, computer programs, notes,
memoranda, specifications, designs, devices, documents, data, programs and
other material of any nature containing or disclosing any Confidential
Information or pertaining to Employee's work with Quarterdeck, in whatever form
or media, and any reproduction of any of the foregoing.
6.4 Proprietary Information of Others. Employee
represents that the performance by Employee of the terms of this Agreement do
not, to the best of Employee's present knowledge and belief, and will not
breach any confidential disclosure agreement with or duty owed to another
person or entity. Further, Employee represents that he will not bring to
Quarterdeck or use pursuant to this Agreement the proprietary information of
another person or entity without first obtaining written authorization for the
possession and use of such proprietary information from the owner thereof.
7. ASSIGNMENT OF WORKS MADE FOR HIRE. Employee
hereby agrees that any ideas or original works of authorship, in whole or in
part conceived or made by Employee during or after the term of his relationship
with Quarterdeck, which are made through the use of any Confidential
Information, which relate to the Company's business or which result from any
work performed by Employee for Quarterdeck shall be deemed to be "works made
for hire" and that the Company shall be deemed the author thereof under the
U.S. Copyright Act (Title 17 of the U.S. Code); provided, however, that in the
event and to the extent such works are determined not to constitute "works made
for hire" as a matter of law, Employee hereby irrevocably assigns and transfers
to Quarterdeck all right, title and interest in such works, including but not
limited to copyrights.
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8. INJUNCTIVE RELIEF. Employee acknowledges
that disclosure of any Confidential Information by Employee will give rise to
irreparable injury to Quarterdeck, inadequately compensable in damages.
Accordingly, in the event of an actual or threatened breach by Employee of the
provisions of this Agreement, Quarterdeck shall be entitled to injunctive
relief restraining Employee from such breach or threatened breach. Nothing
herein shall be construed as prohibiting Quarterdeck from pursuing any other
remedies available to them for such breach or threatened breach, including the
recovery of damages from Employee. Employee acknowledges and agrees that the
covenants contained herein are necessary for the protection of Quarterdeck's
legitimate business interests and are reasonable in scope and content.
9. BINDING ON SUCCESSORS. This Agreement shall
be binding upon and inure to the benefit of Quarterdeck, the Employee and their
respective successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
10. GOVERNING LAW. This Agreement is being made
and executed in and is intended to be performed in the State of California and
shall be governed, construed, interpreted and enforced in accordance with the
substantive laws of the State of California, without regard to the conflict of
laws principles thereof.
11. VALIDITY. The invalidity or unenforceability
of any provision or provisions of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
12. NOTICES. Any notice, request, claim, demand,
document and other communication hereunder to any party shall be effective upon
receipt (or refusal of receipt) and shall be in writing and delivered
personally or sent by telex, telecopy, or certified or registered mail, postage
prepaid, as follows:
(a) If to Quarterdeck, addressed to the principal
offices of Quarterdeck to the attention of the Chief Executive Officer;
(b) If to the Employee, to him at the address set
forth below under his signature;
or at any other address as any party shall have specified by notice in writing
to the other parties.
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13. COUNTERPARTS. This Agreement may be executed
in several counterparts, each of which shall be deemed to be an original, but
all of which together will constitute one and the same Agreement.
14. ENTIRE AGREEMENT. The terms of this
Agreement are intended by the parties to be the final expression of their
agreement with respect to the employment of the Employee by Quarterdeck and may
not be contradicted by evidence of any prior or contemporaneous agreement. The
parties further intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever may
be introduced in any judicial, administrative or other legal proceeding to vary
the terms of this Agreement.
15. AMENDMENTS; WAIVERS. This Agreement may not
be modified, amended, or terminated except by an instrument in writing, signed
by the Employee and Quarterdeck. By an instrument in writing similarly
executed, the Employee or Quarterdeck may waive compliance by the other party
or parties with any provision of this Agreement that such other party was or is
obligated to comply with or perform; provided, however, that such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or
subsequent failure. No failure to exercise and no delay in exercising any
right, remedy or power hereunder shall preclude any other or further exercise
of any other right, remedy or power provided herein or by law or in equity.
16. CUMULATIVE REMEDIES. Each and all of the
several rights and remedies provided in this Agreement, or by law or in equity,
shall be cumulative, and no one of them shall be exclusive of any other right
or remedy, and the exercise of any one of such rights or remedies shall not be
deemed a waiver of, or an election to exercise, any other such right or remedy.
No waiver of any term or condition of this Agreement shall be construed as a
waiver of any other term or condition; nor shall any waiver of any default
hereunder be construed as a waiver of any other default hereunder.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first above written.
EMPLOYEE:
Address: __________________________________
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QUARTERDECK CORPORATION,
a Delaware corporation
By:___________________________________________
Name:_________________________________________
Title:________________________________________
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