EXHIBIT 10.13
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, entered into as of the 15th day of November, 1990, by
and between XXXX X. XXXXXX (the "Employee") and QUALIX GROUP, INC., a Delaware
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corporation (the "Company"),
WITNESSETH:
Whereas the Company wishes to employ Employee at its Executive Vice
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President and Employee wishes to accept such employment upon the terms and
conditions set forth below:
Now, Therefore, in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. Terms of Employment.
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(a) Termination at Will. The Company may terminate the Employee's
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employment for any reason upon 30 days' advance written notice. The Employee
may terminate his or her employment at any time for any reason upon 30 days'
advance written notice.
(b) Termination for Cause. The Company may terminate the Employee's
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employment at any time for Cause by giving written notice. "Cause" shall mean
(i) a willful failure by the Employee to substantially perform his or her duties
hereunder, other than as a result of Employee's complete or partial incapacity
due to physical or mental illness or impairment, or (ii) a willful act by the
Employee which constitutes gross misconduct and which is materially injurious to
the Company. No act, or failure to act, by the Employee shall be considered
"willful" unless committed without good faith and without a reasonable belief
that the act or omission was in the Company's best interest.
(c) Termination for Disability or Mental Incompetence. The Company
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may terminate the Employee's employment for Disability or Mental Incompetence by
giving the Employee not less than 30 days' advance written notice. "Disability"
shall mean that the Employee, at the time notice is given, has been unable to
perform his or her duties under this Agreement for a period of not less than six
consecutive months as the result of a sickness or an injury, as determined by
the Board of Directors in its reasonable discretion. "Mental Incompetence"
shall mean that the Employee has been judicially determined to be of unsound
mind. The notice of termination shall specify the nature of the Disability. If
the Employee resumes the performance of his or her duties hereunder on a full-
time basis before the termination of his or her employment under this subsection
(c) becomes effective, the notice of termination shall automatically be deemed
to have been revoked.
2. Duties and Scope of Employment.
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(a) Position. The Company agrees to employ the Employee in San Mateo
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County or Santa Xxxxx County, California, as its Executive Vice President. The
Employee shall report to the Presidcent and Chief Executive Officer of the
Corporation which such authority and responsibilities as shall be determined by
the President and Chief Executive Officer after consultation with Employee.
(b) Obligations. Employee shall devote his or her full business
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efforts and time to the Company and its affiliates and shall not render services
to any other person or entity without the consent of the Company's Board of
Directors. However, Employee may (i) serve on the boards of directors of not-
for-profit entities and trade groups, (ii) serve on the boards of directors of
such other corporations as the Company's Board of Directors may approve from
time to time, (iii) engage in other civic, charitable, non-profit or religious
activities and (iv) devote a reasonable amount of time to private investments
which do not interfere or conflict with his or her responsibilities to the
Company.
3. Compensation. The Company agrees to pay the Employee a base
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salary at an annual rate of $84,000, or at such higher rate as the parties
hereto may determine by mutual agreement. (The base salary specified in this
Section 3, together with any increases in such salary which the Company may
grant from time to time, is referred to in this Agreement as "Base
Compensation.") The Employee's Base Compensation shall be subject to required
withholding taxes. Employee shall also be entitled to receive an annual merit
bonus as determined by the Board of Directors at its sole discretion.
4. Employee Benefits and Expenses.
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(a) Business Expenses. During the term of his or her employment under
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this Agreement, the Employee shall be authorized to incur necessary and
reasonable travel, automobile, entertainment and other business expenses in
connection with his or her duties hereunder.
(b) Benefits. Employee shall be eligible to participate in all
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employee benefit plans maintained by the Company, subject in each case to the
generally applicable terms and conditions of any such plan. Without limiting the
foregoing, the Employee shall be entitled to receive the following benefits:
(i) Comprehensive medical and dental insurance, fully paid by the
Company with customary and reasonable terms and conditions;
(ii) Term Life insurance, fully paid by the Company, in an amount at
least equal to three times Employee's annual Base Compensation;
(iii) Disability insurance, fully paid by the Company, with customary
and reasonable terms and conditions, including coverage for partial or
complete disability for the remainder of Employee's life; said coverage
shall provide for
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payments in the event of such disability of at least 80% of the Employee's
Base Compensation at the time of disability, thereafter adjusted for
inflation (or such lesser percentage of Employee's Base Compensation as
shall be the maximum percentage obtainable under conventional disability
insurance policies); and
(iv) At least 15 days of paid vacation per year, which may not be
accrued if not taken.
5. Severance Payment. If the Company terminates the Employee's
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employment for any reason other than Cause, Disability or Mental Incompetence or
if the Employee terminates his or her employment for Good Reason (as defined
below), the Employee shall be entitled to receive a severance payment from the
Company (the "Severance Payment") equal to 25% of the Employee's annual rate of
Base Compensation, as then in effect, payable in a lump sum or in three equal
monthly installments, as determined by the Company and the Employee. "Good
Reason" shall mean (i) a demotion without cause, (ii) a material reduction in
responsibility or authority without cause or (iii) any situation that would
materially impair the ability of the Employee to exercise the authority and
perform the functions customarily exercised and performed by an executive vice
president.
6. Miscellaneous Provisions.
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(a) Delivery of Notice. Notices and all other communications
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contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when delivered in person or by an established courier or when
mailed by certified mail, return receipt requested and postage prepaid. Notices
mailed to the Employee shall be addressed to him or her at the home address
which he or she most recently communicated to the Company in writing. Notices
mailed to the Company shall be addressed to its corporate headquarters and shall
be directed to the attention of its Secretary.
(b) Waiver. Any modification, waiver or discharge of this Agreement
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must be in writing and signed by the Employee and by the Company. No waiver by
either part of any breach of, or of compliance with, any condition or provision
of this Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another time.
(c) Assignment and Successors. Any purported assignment or delegation
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of any obligation hereunder by a party hereto without the other party's written
consent shall be void. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and permitted assigns.
(d) Whole Agreement. This Agreement contains the entire agreement and
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understanding between the Company and Employee with respect to the subject
matter hereof and supersedes any prior employment agreement between the Employee
and the Company.
(e) Choice of Law. This Agreement shall be governed by the internal
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laws of the State of California.
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(f) Severability. The invalidity or unenforceability of any provision
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or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof.
(g) Arbitration. Any dispute or claim in law or equity, whether based
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on contract or tort or otherwise, relating to or arising out of the employment
of the Employee by the Company, other than a claim based on a statute providing
an exclusive means of enforcement, shall be settled exclusively by final
arbitration in accordance with the labor arbitration rules of the American
Arbitration Association in effect at the time the arbitration is initiated.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement,
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in the case of the Company by its duly authorized officer, as of the day and
year first above written.
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Employee
QUALIX GROUP, INC.
By:
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