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EXHIBIT 99.A-3
Form 8-K
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of March 5, 1999,
is by and among TouchStone Software Corporation, a Delaware corporation (the
"Company"), Unicore Software, Inc., a Massachusetts corporation (the
"Subsidiary") and Xxxxx X. Xxxx ("Raza"). This Agreement shall for all purposes
be deemed to be effective as of March 1, 1999 (the "Effective Date"). In
consideration of the mutual covenants and conditions set forth below, the
Company, the Subsidiary and Raza hereby agree as follows:
1. EMPLOYMENT. The Company and the Subsidiary hereby employ Raza and
Raza hereby accepts employment with the Company and the Subsidiary subject to
the covenants and conditions of this Agreement.
2. DUTIES. Raza shall be employed in the capacity of Vice-President of
the Company and Vice-President of the Subsidiary. During the term of employment
(as defined below), Raza shall, on a substantially full time basis, use his
skills and render services to the best of his ability in performing such duties
as are consistent with his position, subject to the direction of the President
of the Company.
3. TERM. Subject to earlier termination as hereafter provided, this
Agreement shall have an original term of three (3) years commencing on the
Effective Date and shall be automatically extended thereafter for successive
terms of one (1) year each (the "Extended Term"), unless either party provides
notice to the other at least six (6) months prior to the expiration of the
original term or the Extended Term that the Agreement is not to be extended. The
term of this Agreement, as from time to time extended or renewed, is herein
referred to as the "term of employment," the "term of this Agreement" or the
"term hereof".
4. BASE SALARY. During the term of Raza's employment hereunder, Raza
shall be paid a base salary at an annual rate of One Hundred and Ten Thousand
($110,000.00) Dollars. During the Extended Term, Raza shall be paid a base
salary at an annual rate to be mutually agreed between the Company and Raza,
with such annual rate to be not less than One Hundred and Ten Thousand
($110,000.00) Dollars or such higher amount as may be mutually agreed by the
parties. Payments of base salary shall be in equal installments at the end of
such regular payroll periods as are established by the Company, or in such other
installments upon which the parties hereto shall mutually agree.
5. INCENTIVE COMPENSATION. In addition to the base salary, Raza shall
be entitled to receive incentive bonus compensation in accordance with the terms
established from time to time by the President of the Company.
6. PARTICIPATION IN BENEFIT PLANS. Raza shall be entitled to
participate in, and receive benefits under, all the Company's employee benefit
plans and arrangements as in effect from time to time (including, but not
limited to, participation in any pension, profit sharing, stock option, stock
bonus or employee stock ownership plan adopted by the
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Company). Such benefit plans and arrangements shall not be less than any benefit
plans and arrangements which the Subsidiary currently maintains.
7. VACATION DAYS. Raza shall be entitled to twenty (20) vacation days,
which number may be increased from time to time as determined by the Company to
be appropriate for similarly situated senior executives of the Company and paid
holidays in each year as are determined by the Company from time to time for
similarly situated senior executives; provided that the aggregate annual number
of such vacation days and paid holidays shall at no time fall below the number
of days per year to which Raza was entitled with the Subsidiary immediately
prior to the Effective Date.
8. PERQUISITES. The Company shall provide Raza with life, health,
dental, disability and other insurance at a level not less than the level to
which Raza was entitled with the Subsidiary immediately prior to the Effective
Date.
9. EXPENSES. Raza shall receive prompt reimbursement for all reasonable
travel, entertainment and business-related expenses in connection with his
employment hereunder, in accordance with the reasonable policies of the Board of
Directors of the Company.
10. TRAVEL/RELOCATION. Raza shall not be required to travel in
connection with his employment hereunder to any extent materially greater than
the normal and customary travel incurred by him with the Subsidiary during the
one (1) year period of time immediately prior to the Effective Date. The Company
shall not relocate the Company's offices at which Raza is principally employed
to a location more than 25 miles from the Subsidiary's offices in North Andover,
Massachusetts and the Company shall not require Raza to be based anywhere other
than the Subsidiary's offices at such location.
11. TERMINATION OF EMPLOYMENT. a) During the term of this Agreement,
the Company may terminate Raza's employment with the Company only for the
following reasons:
1. Upon the death of Raza.
2. If Raza is (a) permanently disabled as defined and
determined under any disability insurance policy carried
by the Company covering Raza or (if no such policy is then
in place) if Raza is unable to perform his duties
effectively for reasons such as mental illness, injury,
physical illness or disability and such inability has
continued for a period in excess of six (6) months, as
evidenced by a written statement of Raza's physician, or
(b) deemed incapacitated by a court of competent
jurisdiction in a final ruling.
3. As a result of any tender or exchange offer, merger,
consolidation or other business combination, sale of
assets or contested election, or any combination of the
foregoing transactions: (a) the persons who were directors
of the Company before such transaction shall cease to
constitute a majority of the Board of Directors of the
Company (or of any successor entity), (b) the Company is
not the surviving corporation in the transaction,
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or (c) the stockholders of the Company immediately prior
to such transaction do not hold immediately after such
transaction a majority in the aggregate of the outstanding
common shares of the surviving entity.
4. The sale or disposition of all or substantially all of the
assets of the Company in one transaction or in a series of
transactions.
5. The liquidation or dissolution of the Company.
6. The willful and continued failure by Raza to substantially
perform his duties with the Company (other than failure
resulting from the incapacity of Raza due to physical or
mental illness) after a written demand for substantial
performance is delivered to Raza by the Company which
demand specifically identifies the manner in which the
Company believes that Raza has not substantially performed
Raza's duties and provided that Raza fails to cure such
performance within thirty (30) days following said written
demand.
7. The willful and intentional engagement by Raza in conduct
which is demonstrably and materially injurious to the
Company or the Subsidiary, including material unlawful
conduct, material and conscious falsification or
unauthorized disclosure of important records, embezzlement
or unauthorized conversion of property.
8. By the Company for any reason by giving Raza thirty (30)
days written notice specifying the date as of which his
termination is to become effective.
b) During the term of this Agreement, Raza may terminate his employment
with the Company by giving thirty (30) days written notice to the Company
specifying the date as of which his termination is to become effective. Upon
voluntary termination by Raza of his employment pursuant to this Section 11(b),
the Company shall have no further obligation to Raza under this Agreement except
to distribute to Raza his base salary due pursuant to Section 4 hereof and
accrued vacation pay and expenses up to the date of termination, together with
any bonus accrued to Raza as of the date of termination.
12. EFFECT OF TERMINATION. Upon termination of Raza's employment
pursuant to Sections 11(a)(1), 11(a)(2), 11(a)(5) or 11(a)(8) hereof, the
Company shall make a lump sum cash payment to Raza equal to the sum of: (a) one
year's base salary payable in cash or its equivalent, or agreed to be paid in
lieu of cash compensation to Raza at the time of Raza's termination of
employment; plus (b) the amount of any bonuses paid to, or earned by, Raza
during the previous calendar year. The Company shall continue to provide to
Raza, for an eighteen (18) month period after the date of termination, Raza's
then-existing coverage under the Company's health, dental, life and disability
insurance plans or, if continued coverage under such plans cannot be provided,
substantially equivalent coverage under alternative arrangements.
Upon termination of Raza's employment pursuant to Sections 11(a)(3),
11(a)(4), 11(a)(6) or 11(a)(7), the Company shall have no further obligation to
Raza under this Agreement except to deliver to Raza his base salary due pursuant
to Section 4 and accrued
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vacation pay and expenses up to the date of termination, together with any bonus
accrued to Raza as of the date of termination.
13. WITHHOLDING. Subject to the terms of Section 12 hereof, all
payments made by the Company under this Agreement shall be reduced by any tax or
other amounts required to be withheld by the Company under applicable law.
14. COMPETITIVE EMPLOYMENT. For a period of one (1) year after the date
of the termination of his employment, Raza shall not engage in Directly
Competitive Employment (as hereinafter defined). For purposes of this Agreement,
"Directly Competitive Employment" shall mean employment with those employers who
have been individually and specifically determined by the Company in a written
notice given to Raza by the Company, at or within five (5) days of Raza's
termination, to offer directly competitive employment with respect to Raza's
former employment with the Company. In making its determination under this
Section, the Company shall determine that Raza's knowledge of such matters as
the Company's particular methods, policies, customers, suppliers, personnel or
plans, as distinguished from the skills, experience and services of Raza in
general, would materially enhance Raza's new employer. For purposes of this
Agreement, the Company shall identify not more than five (5) persons, firms, or
corporations which would constitute Directly Competitive Employment. Raza
believes that the restrictions in this Section are reasonable and they will not
prevent Raza from pursuing his livelihood. However, should a court or tribunal
find that the definition of Directly Competitive Employment is unreasonable,
then Raza recognizes that the court shall interpret and enforce the definition
to the maximum lawful extent.
15. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Raza shall protect,
safeguard, and keep secret business, technical and trade information that has
been discovered or accumulated by or for the Company (the "Confidential
Information"), except as otherwise authorized by the Company in writing and as
is required in the performance of his duties pursuant to this Agreement, during
Raza's employment and thereafter. For purposes of this Agreement, the term
"Confidential Information" shall not include information that Raza acquires from
parties other than the Company, or to any information, matter or thing that is
in the public domain or has been disclosed to others by the Company or its
subsidiaries, employees or agents. Raza shall also use the Confidential
Information only for the Company's benefit and only at the Company's direction.
Raza shall not, and shall not allow another to, publish or disclose the
Confidential Information to any third party or use it for any other purpose,
other than as required pursuant to court order, subpoena in a governmental
proceeding, arbitration or other process of law. Raza understands that such
Confidential Information includes, but is not limited to, trade secrets,
business or financial information (including markets, sales, profits, pricing,
and customer lists), plans or projections for future development, ideas,
technical data or other information which have been kept secret or confidential
by the Company, regardless of whether the Confidential Information is merely
remembered or embodied in a tangible medium, developed in whole or part by Raza,
or whether it was provided to Raza. Immediately upon termination of employment
for any reason, Raza shall return to the Company all records, files, computer
disks, stored computer
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data or other tangible or electronic media containing such Confidential
Information, including all copies.
16. AUTHORIZATION AND EXECUTION. The Company hereby represents and
warrants that the execution and delivery of the Agreement by the Company has
been authorized by all necessary corporate action of the Company, including the
unanimous consent of the Board of Directors, and the Agreement constitutes a
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, except to the extent limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by general equitable principles.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements, understandings and communications between the parties,
oral or written, with respect to such subject matter.
18. MODIFICATION AND TERMINATION. Any waiver, termination, alteration,
amendment or modification of any provision of this Agreement shall not be valid
unless in writing signed by the party against whom enforcement is sought.
19. SEVERABILITY. Each term and provision of this Agreement is intended
to be enforced to the maximum extent permitted by applicable law. If any term or
provision of this Agreement, or the applicability thereof to any person or
circumstances, shall to any extent be invalid or unenforceable, the remainder of
this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and shall continue in full force and effect.
20. NOTICE. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed received and
effective upon the earlier of (i) hand delivery to the recipient, (ii) two (2)
days after posting by air courier, or (iii) five (5) days after posting by
certified or registered mail, postage prepaid, return receipt requested, or (iv)
when initially transmitted by facsimile transmission, if such notice is
concurrently sent by traceable mail:
(i) If to the Company or the Subsidiary:
TouchStone Software Corporation
0000 Xxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxx Xxxx
(ii) If to Raza:
Xxxxx X. Xxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
With a copy to:
Xxxxxx X. XxXxxx and Associates, P.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
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or to such other person or address as either of the parties shall furnish in
writing to the other party from time to time.
21. CHOICE OF LAW. This Agreement shall be governed for all purposes by
the laws of the State of California, to the jurisdiction of whose courts the
parties hereto submit.
22. ATTORNEYS' FEES. In the event of litigation arising out of or in
connection with this Agreement, the prevailing party shall be entitled to
recover from the other party all of its attorneys' fees and other expenses
incurred in connection with such litigation.
23. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and shall be binding upon the heirs, personal
representatives, successors and assigns of the parties and no signature or other
indication of assent by any such person shall be required as a prerequisite to
enforceability; provided, however, that Raza's obligations to the Company are
personal to Raza and Raza acknowledges that Raza may not assign them.
24. HEADINGS AND GENDER. The headings of the Sections of this Agreement
have been included for convenience of reference purposes only and shall in no
way be interpreted to restrict or modify the terms hereof. The use of pronouns
of any gender herein shall include pronouns of all other genders, as applicable.
25. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which may be termed an original, but all of which together
shall constitute one Agreement.
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IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date first above written.
TOUCHSTONE SOFTWARE CORPORATION
By:
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Witness Name:
Title:
UNICORE SOFTWARE, INC.
By:
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Witness Name:
Title: Director
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Witness Xxxxx X. Xxxx
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