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Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of July 24, 1996, is made and entered
into between Quarterdeck Corporation, a Delaware corporation ("Quarterdeck")
and Xxxxxxx Xxxxxxx (the "Employee").
1. EMPLOYMENT. Quarterdeck shall employ the Employee
and the Employee shall enter the employ of Quarterdeck in the position of
President of VSI Acquisition Corporation. In addition, subsequent to the date
hereof and subject to and effective upon appointment by the Board of Directors
of Quarterdeck, Employee shall serve as a Senior Vice President of Quarterdeck
and as the General Manager of the Quarterdeck Utilities Division. This
Agreement shall have an initial term of two years terminating on July 24, 1998
(the "Initial Term"), unless sooner terminated in accordance with Section 5 of
this Agreement. At the expiration of such two-year period, the term of this
Agreement shall automatically be extended for successive one-year periods,
unless Quarterdeck or the Employee shall give written notice to the other at
least 30 days prior to the end of the applicable period of its intention to
terminate 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.
3. COMPENSATION AND RELATED MATTERS.
(a) Annual Base Salary. The Employee shall
receive an aggregate base salary ("Annual Base Salary") of One Hundred Eighty
Thousand Dollars ($180,000) per annum payable in equal bi-weekly installments.
(b) Bonus Compensation. Employee shall be
eligible to receive an annual bonus in an amount not to exceed Ninety Thousand
Dollars ($90,000) ("Incentive Bonus Compensation"), determined in accordance
with the terms of the Management Performance Bonus Plan of Quarterdeck, or any
successor or replacement plan adopted by Quarterdeck and applicable to
individuals at the level of Employee. Such bonus shall be paid on a quarterly
basis.
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(c) Benefits. During the term of employment, the
Employee shall be entitled to participate in or receive benefits under any
employee benefit plan generally made available by Quarterdeck to individuals at
the level of Employee (collectively, "Benefits"), 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. Upon appointment of
Employee as a Senior Vice President of Quarterdeck, Quarterdeck shall agree to
provide indemnification to Employee under its Standard Indemnification
Agreement for its officers and directors. Employee shall be permitted to carry
over to Quarterdeck accrued vacation reflected on Vertisoft's balance sheet up
to a maximum of three weeks.
(d) Expenses. Quarterdeck or Vertisoft 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. Upon commencement of the Employee's
employment by Quarterdeck on July 24, 1996, Employee was granted options to
acquire 250,000 shares of the common stock of Quarterdeck under Quarterdeck's
1990 Employee Stock Incentive Plan (the "Plan"). In addition, so long as
Employee has not materially breached this Agreement, on the one year
anniversary hereof, Employee shall be granted options to acquire 50,000
additional shares of the common stock of Quarterdeck under the Plan. All
options shall have an exercise price equal to the fair market value of the
Quarterdeck common stock on the date of grant.
4. COMPETITION.
(a) The Employee agrees that for the term of this
Agreement, 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, Vertisoft and any of their
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.
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In addition, for a period of six months after termination of this agreement,
Employee will not recruit or solicit any person who was an employee of or
consultant to Quarterdeck or any of its subsidiaries at the time of such
termination or 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.
(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 if 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 fraud; (2) breached any non-competition covenant with
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the Company or Quarterdeck; (3) committed willful or intentional acts
constituting a material breach of this Agreement; or (4) been convicted of a
felony or crime of moral turpitude.
(c) Disability.
(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).
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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 his 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
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written consent of the Chief Executive Officer and the General Counsel of
Quarterdeck. Employee shall 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 and are in addition to
Employee's obligations under any other confidential agreement with Quarterdeck
or its subsidiaries.
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
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business activities of Quarterdeck or its subsidiaries, and documents, records,
notebooks, drawings, photographs and similar repositories or representations of
such information. The term "Confidential 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
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transfers to Quarterdeck all right, title and interest in such works, including
but not limited to copyrights.
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. CERTAIN BENEFITS.
9.1. Change of Control. In the event a majority
of the stock of Quarterdeck is acquired by another person or entity which is
not an affiliate of Quarterdeck prior to such transaction ("Entity"), or the
Company is merged with another Entity, or substantially all of the assets of
the Company are sold to another Entity, and within 60 days of such event
Employee gives written notice of election to terminate this Agreement, Employee
shall be entitled to the following benefits:
(i) Twelve months Annual Base Salary plus an
amount equal to the maximum Bonus Executives could receive for
such 12 month period, payable in bi-weekly installments;
(ii) COBRA insurance coverage for eighteen months,
payments for such coverage to be made by the Company monthly;
and
(iii) Employee shall be immediately vested in 50%
of Employee's unvested stock options outstanding on the date
of termination. Such options shall be subject to the
termination provisions contained in the standard form of stock
option agreement of Quarterdeck.
Any and all rights to monetary payments not yet payable by the
Company under this Sections 9.1 shall cease and terminate at such time as
Employee obtains other full-time employment.
9.2 Certain Termination Events. In the event (i)
Quarterdeck terminates Employee without Cause, (ii) the Company materially
breaches this Agreement, or (iii) Employee is assigned duties by the Company
which constitutes substantial diminution of his duties hereunder, and, in the
case of clauses (ii) and (iii) hereof, Employee elects to terminate this
Agreement and cease to
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be an employee of Quarterdeck within sixty days of such event, Employee shall
be entitled to, in addition to all remedies under applicable law, all
compensation and benefits provided under this Agreement for the full term
hereof including full vesting of Employee's stock options that would have
vested during the term of this Agreement, without offset or duty to mitigate.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
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15. 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. This Agreement supersedes any obligations of
Vertisoft Systems, Inc. under any employment or consulting agreement with
Employee.
16. ATTORNEYS' FEES. In the event that either party
shall bring an action in connection with the performance, breach or
interpretation hereof, then the prevailing party in such action as determined
by the court having jurisdiction shall be entitled to recover from the losing
party in such action, as determined by the court having jurisdiction, all
reasonable costs and expenses of such litigation, including attorneys' fees,
court costs, costs or investigation and other costs reasonably related to such
litigation, in such amount as may be determined in the discretion of the court
having jurisdiction.
17. 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.
18. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
EMPLOYEE:
Xxxxxxx Xxxxxxx
Address: _______________________________
___________________________________________
QUARTERDECK CORPORATION,
a Delaware corporation
By:
Name:
Title:
