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EXHIBIT 4.02
Form of Employment Agreement entered into by Xxxxxx with each of the
Xxxxxx Shareholders on November 12, 1996.
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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as
of November 12, 1996 (the "Effective Date") between Xxxxxx Software, Inc., a
Washington corporation located at 00000 XX 00xx Xxxxxx, Xxxxx X, Xxxxxxxx,
Xxxxxxxxxx 00000 (the "Company"), and __________________, a resident of the
State of Washington ("Employee").
The Company is entering into an Agreement and Plan of
Reorganization dated as of November 9, 1996 ("Plan of Reorganization") with
Worldtalk Communications Corporation, a Delaware corporation ("Worldtalk") and
the shareholders of the Company including Employee. It is understood that this
Employment Agreement is a material inducement for the Company to enter into
such Plan of Reorganization and that but for this Agreement, the Company would
not enter into such Plan of Reorganization.
In consideration of the promises and the terms and conditions
set forth in this Agreement, the parties agree as follows:
1. POSITION. During the term of this Agreement, Company
will employ Employee, and Employee will serve Company as _____________________.
Employee will report directly to __________________________________________.
2. DUTIES. Employee will serve the Company in such
capacities and with such duties and responsibilities as the Board of Directors
of Company may from time to time determine. Employee will comply with and be
bound by Company's operating policies, procedures, and practices from time to
time in effect during Employee's employment. Employee hereby represents and
warrants that he is free to enter into and fully perform this Agreement and the
agreements referred to herein without breach of any agreement or contract to
which he is a party or by which he is bound.
3. EXCLUSIVE SERVICE. Employee will devote his full time
and efforts exclusively to this employment and apply all his skill and
experience to the performance of his duties and advancing the Company's
interests in accordance with Employee's experience and skills. In addition,
Employee will not engage in any consulting activity except with the prior
written approval of Company, or at the direction of Company, and Employee will
otherwise do nothing inconsistent with the performance of his duties hereunder.
4. TERM OF AGREEMENT. This Agreement will commence on the
Effective Date, and will continue until the earlier of five (5) years after the
Effective Date or when terminated pursuant to Section 7 hereof.
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5. COMPENSATION AND BENEFITS.
5.1 BASE SALARY. The Company agrees to pay Employee
an initial minimum salary of _______________________ ($_____________) per year.
Employee's salary will be payable as earned in accordance with Company's
customary payroll practice. Employee's salary and performance will be reviewed
annually. Employee's salary is subject to change as determined by the Company's
Board of Directors in its discretion.
5.2 ADDITIONAL BENEFITS. Employee will be eligible
to participate in Company's employee benefit plans of general application,
including without limitation those plans covering pension and profit sharing,
stock purchases, and those plans covering life, health, and dental insurance in
accordance with the rules established for individual participation in any such
plan and applicable law. Employee will receive such other benefits, including
vacation, holidays and sick leave, as the Company generally provides to its
employees holding similar positions as that of Employee.
5.3 STOCK OPTIONS. Effective at the next Company
Compensation Committee meeting following the Effective Date, Employee shall be
granted under Worldtalk's 1996 Equity Incentive Plan an incentive stock option
to purchase _____________ shares of Worldtalk Common Stock at the fair market
value as determined by Worldtalk's Compensation Committee on the date of grant.
Such options shall become exercisable ("vest") on substantially the terms set
forth in the form of Option Grant attached hereto as Exhibit A and shall have a
10 year term from the Effective Date.
5.4 EXPENSES. The Company will reimburse Employee
for all reasonable and necessary expenses incurred by Employee in connection
with the Company's business, provided that such expenses are deductible to the
Company, are in accordance with the Company's applicable policy and are
properly documented and accounted for in accordance with the requirements of
the Internal Revenue Service.
6. PROPRIETARY RIGHTS. Employee hereby agrees to execute
an Employee Invention Assignment and Confidentiality Agreement with the Company
in substantially the form attached hereto as Exhibit B.
7. TERMINATION.
7.1 EVENTS OF TERMINATION. Employee's employment
with the Company shall terminate upon any one of the following:
(a) immediately upon notice from the Company, which
may be given at any time with or without cause; or
(b) upon three months written notice from Employee,
which notice may not be given until the first day of the tenth
month following the Effective Date, it being understood and
agreed that Employee will not terminate his employment with
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the Company within the first year following the Effective Date
("First Year") other than by death or disability within the
meaning of Internal Revenue Code Section 22(e)(3).
8. EFFECT OF TERMINATION.
8.1 EFFECT OF TERMINATION GENERALLY. In the event of
any termination of this Agreement, and except as set forth below in this
Section 8, the Company shall pay Employee the compensation and benefits
otherwise payable to Employee under Section 5 through the date Employee ceases
to perform services for the Company plus an amount equal to 30 days' salary at
the Employee's then current salary. In addition, Employee's rights under the
Company's benefit plans of general application shall be determined under the
provisions of those plans.
8.2 EFFECT OF TERMINATION BY COMPANY WITHIN FIRST
YEAR. If the Company terminates this Agreement under Section 7(a) above during
the First Year, the Company will pay to Employee an amount equal to the
remaining base salary as established in Section 5.1 during the First Year
payable over the remaining First Year Period in accordance with the Company's
normal payroll policies.
8.3 EFFECT OF TERMINATION BY EMPLOYEE WITHIN FIRST
YEAR. If Employee terminates this Agreement under Section 7(b) above during
the First Year, the provisions of Section 4.1 of that certain Shareholder's
Agreement dated as of even date herewith shall apply.
9. MISCELLANEOUS.
9.1 ARBITRATION. Any dispute arising out of or in
connection with this Agreement shall be resolved in accordance with Section
10.3 of the Plan of Reorganization.
9.2 SEVERABILITY. If any provision of this Agreement
shall be found by any arbitrator or court of competent jurisdiction to be
invalid or unenforceable, then the parties hereby waive such provision to the
extent that it is found to be invalid or unenforceable and to the extent that
to do so would not deprive one of the parties of the substantial benefit of its
bargain. Such provision shall, to the extent allowable by law and the
preceding sentence, be modified by such arbitrator or court so that it becomes
enforceable and, as modified, shall be enforced as any other provision hereof,
all the other provisions continuing in full force and effect.
9.3 REMEDIES. The Company and Employee acknowledge
that the service to be provided by Employee is of a special, unique, unusual,
extraordinary and intellectual character, which gives it peculiar value the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Accordingly, Employee hereby consents and agrees that for any
breach or violation by Employee of any of the provisions of this Agreement
including, without limitation, Section 3, a restraining order and/or injunction
may be issued against Employee, in addition to any other rights and remedies
the Company may have, at law or equity, including without limitation the
recovery of money damages.
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9.4 NO WAIVER. The failure by either party at any
time to require performance or compliance by the other of any of its
obligations or agreements shall in no way affect the right to require such
performance or compliance at any time thereafter. The waiver by either party
of a breach of any provision hereof shall not be taken or held to be a waiver
of any preceding or succeeding breach of such provision or as a waiver of the
provision itself. No waiver of any kind shall be effective or binding, unless
it is in writing and is signed by the party against whom such waiver is sought
to be enforced.
9.5 ASSIGNMENT. This Agreement and all rights
hereunder are personal to Employee and may not be transferred or assigned by
Employee at any time. The Company may assign its rights, together with its
obligations hereunder, to any parent, subsidiary, affiliate or successor, or in
connection with any sale, transfer or other disposition of all or substantially
all of its business and assets, provided, however, that any such assignee
assumes the Company's obligations hereunder.
9.6 WITHHOLDING. All sums payable to Employee
hereunder shall be reduced by all federal, state, local and other withholding
and similar taxes and payments required by applicable law.
9.7 ENTIRE AGREEMENT; TERMINATION OF PRIOR EMPLOYMENT
AGREEMENTS. This Agreement constitutes the entire and only agreement between
the parties relating to employment of Employee with the Company or any
subsidiary or other affiliated entity of the Company, and this Agreement
supersedes and cancels any and all previous contracts, arrangements or
understandings with respect thereto, including without limitation that certain
Employment Agreement between Employee and the Company dated as of ____________;
provided that any amounts owing to the Company as a result of loans by the
Company to Employee under or in connection with such agreement will survive and
remain payable in accordance with their terms.
9.8 AMENDMENT. This Agreement may be amended,
modified, superseded, canceled, renewed or extended only by an agreement in
writing executed by both parties hereto.
9.9 NOTICES. Any notice or other communication
required or permitted to be given under this Agreement will be in writing, will
be delivered personally or by certified mail, postage prepaid, return receipt
requested, and will be deemed given upon delivery, if delivered personally, or
three days after deposit in the mails, if mailed, to the following addresses:
If to the Company:
Xxxxxx Software, Inc.
00000 XX 00xx Xxxxxx, Xxxxx X
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President
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With a copy to:
Worldtalk Communications Corporation
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
If to Employee:
________________________________
________________________________
________________________________
________________________________
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 9.9.
9.10 BINDING NATURE. This Agreement shall be binding
upon, and inure to the benefit of, the successors and personal representatives
of the respective parties hereto.
9.11 HEADINGS. The headings contained in this
Agreement are for reference purposes only and shall in no way affect the
meaning or interpretation of this Agreement. In this Agreement, the singular
includes the plural, the plural included the singular, the masculine gender
includes both male and female referents, and the word "or" is used in the
inclusive sense.
9.12 COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original but
all of which, taken together, constitute one and the same agreement.
9.13 GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereto shall be construed in accordance with the
laws of the State of Washington, without giving effect to the principles of
conflict of laws.
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IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the date first above written.
XXXXXX SOFTWARE, INC. "EMPLOYEE"
By:_______________________________ ___________________________________
Name:_____________________________
Title:____________________________
EXHIBITS
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Exhibit A Form of Option Grant
Exhibit B Form of Proprietary Rights and Confidentiality Agreement
[SIGNATURE PAGE FOR EMPLOYMENT AGREEMENT]
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