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EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is effective as of the 2nd
day of January, 1997 ("Effective Date"), and is entered into this 1st day of
July, 1997, by and between HARBINGER CORPORATION ("Company"), a Georgia
corporation, and XXXXX X. XXXXX ("Employee"), an individual. For and in
consideration of the mutual covenants described below, the parties hereby agree
as follows:
1. EMPLOYMENT. Company agrees to employ or continue to employ Employee, and
Employee agrees to accept and continue such employment, upon the following
terms and conditions.
2. DUTIES.
a. Employee shall assume the responsibilities and perform the duties
specified in EXHIBIT A ("Duties"). Employee agrees to devote reasonable work
time and energy to the furtherance of the business of Company consistent with
the Duties and shall not during the term hereof work or perform services in any
advisory or other capacity (other than as a member of the Board of Directors or
Board of Advisors of an entity which is not competitive with the Company) for
any individual, firm, company, or corporation other than for Company without
Company's prior written consent.
b. Employee shall serve on the Company's Board of Directors (the "Board")
if elected by the Company's shareholders to serve in such capacity.
c. This Agreement may be supplemented from time to time by rules and
regulations of employment issued by Company, including, without limitation,
such rules and regulations described in the Company employee handbook, and
Employee agrees to adhere to these rules and regulations.
3. COMPENSATION.
a. ANNUAL SALARY. Employee's annual salary ("Annual Salary") commencing as
of April 1, 1997 shall be One Hundred Seventy Five Thousand Dollars
($175,000.00), payable in accordance with the Company's standard payment terms.
The amount of any Annual Salary increases in subsequent years shall be
determined by the Compensation Committee ("Committee") or the Board in its sole
discretion.
b. ANNUAL BONUS. Employee's annual bonus ("Annual Bonus") for 1997 shall
be fifty percent (50%) of the 1997 Annual Salary, payable in accordance with
Employee's satisfactory fulfillment of the objectives as established and
determined by the Committee or the Board. Any future Annual Bonus(es) in
subsequent years shall be determined by the Committee or the Board.
c. BENEFITS. Employee shall be entitled to receive the same employee
benefits as made available by Company to its Chairman.
4. [RESERVED]
5. TERM. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall remain in full force and effect for four (4) years
thereafter, unless sooner terminated as provided in Section 9 below. Upon the
Effective Date, the previously executed Employment Agreement between Company
and Employee dated January 18, 1995 shall be deemed to have terminated
automatically and shall thereafter be of no further force or effect, and this
Agreement shall supersede all prior agreements, arrangements and understandings
with respect to the subject matter hereof, except as set forth in Section
13(b).
6. OWNERSHIP.
For purposes of this Agreement, "Work Product" shall mean the data, materials,
documentation, computer programs, inventions (whether or not patentable), and
all works of authorship, including all worldwide rights therein under patent,
copyright, trade secret, confidential information, or other property right,
created or developed in whole or in part by Employee, whether prior to or after
the Effective Date, while retained or employed by Company (whether developed
during work hours or not). All Work Product shall be considered work made for
hire by Employee and owned by Company. If any of the Work Product may not, by
operation of law or otherwise, be considered work made for hire by Employee for
Company, or if ownership of all right, title, and interest of the intellectual
property rights therein shall not otherwise vest exclusively in Company,
Employee hereby assigns to Company, and upon the future creation thereof
automatically assigns to Company, without further consideration, the ownership
of all Work Product. Company shall have the right to obtain and hold in its own
name copyrights, patents, registrations, and any other protection available in
the Work Product. Employee agrees to perform, during or after Employee's
employment, such further acts as may be necessary or desirable to transfer,
perfect, and defend Company's ownership of the Work Product that are reasonably
requested by Company.
7. LICENSE. To the extent any materials other than Work Product are contained
in the materials Employee delivers to Company or Company's customers ("Licensed
Materials"), Employee grants to Company an irrevocable, nonexclusive,
worldwide, royalty-free license to: (i) use and distribute (internally or
externally) copies of, and prepare derivative works based upon, the Licensed
Materials and derivative works thereof, and (ii) authorize others to do any of
the foregoing.
8. NONDISCLOSURE OF PROPRIETARY INFORMATION.
a. As used herein, "Trade Secrets" means information constituting a trade
secret within the meaning of Section 10-1-761(4) of the Georgia Trade Secrets
Act of 1990, including all amendments hereafter adopted. As used herein,
"Confidential Information" means information, other than Trade Secrets, that is
of value to its owner and is treated as confidential. "Proprietary Information"
means, collectively, Confidential Information and Trade Secrets.
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b. Company may disclose to Employee certain Proprietary Information.
Employee acknowledges and agrees that the Proprietary Information of Company is
the sole and exclusive property of Company (or a third party providing such
information to Company) and that Company owns all worldwide copyrights, trade
secret rights, confidential and proprietary information rights, and all other
property rights therein.
c. Employee acknowledges and agrees that the disclosure of the Proprietary
Information of Company to Employee does not confer upon Employee any license,
interest or rights of any kind in or to the Proprietary Information.
d. Employee agrees to use the Proprietary Information solely for the
benefit of Company. Except in the performance of services for Company, Employee
will hold in confidence and not use, reproduce, distribute, transmit, reverse
engineer, decompile, disassemble, or transfer, directly or indirectly, in any
form, by any means, or for any purpose, the Proprietary Information of Company
or any portion thereof communicated, discussed, delivered or made available by
Company to or received by Employee, whether orally or in written form, without
the prior written consent of Company. Employee shall notify Company immediately
upon discovery of any unauthorized use or disclosure of the Proprietary
Information.
e. Employee acknowledges that its obligations under this Agreement with
regard to the Trade Secrets of Company remain in effect for as long as such
information shall remain a trade secret under applicable law. Employee
acknowledges that its obligations with regard to the Confidential Information
of Company shall remain in effect while Employee is retained by Company to
perform the Duties and for three (3) years thereafter. The foregoing
obligations shall not apply if and to the extent that: (a) Employee establishes
that the information communicated was already known to Employee, without
obligation to keep it confidential, at the time of its receipt from Company;
(b) Employee establishes that the information communicated was received by
Employee in good faith from a third party lawfully in possession thereof and
having no obligation to keep such information confidential; or (c) Employee
establishes that the information communicated was publicly known at the time of
its receipt by Employee or has become publicly known other than by a breach of
this Agreement or other action by Employee.
f. The terms of this Agreement and the relationship between Company and
Employee shall be subject to the obligations of nondisclosure herein, except to
the extent that disclosure thereof is required by law or regulation.
9. TERMINATION. The parties agree that Employee's term of employment may be
terminated at any time, for any reason or for no reason, with cause or without
cause (as defined below), by Company or Employee.
a. TERMINATION WITH CAUSE. The parties agree that Employee's employment
may be terminated at any time with notice by Company for cause ("Termination
With Cause") under any one or more of the following events:
(i) Employee's knowing and willful misconduct with respect to
the business and affairs of the Company;
(ii) Any material violation by Employee of any policy of the
Company relating to ethical business conduct or practices or
fiduciary duties of a senior executive;
(iii) Knowing and willful material breach of any provision of
this Agreement which is not remedied within thirty (30) days after
Employee's receipt of notice thereof;
(iv) Employee's commission of a felony or an illegal act
involving moral turpitude or fraud or Employee's dishonesty
which may reasonably be expected to have a material adverse effect on
the Company; and/or
(v) Failure to comply with reasonable directives of the Board
which are consistent with the Duties, if not remedied within thirty
(30) days after Employee's receipt of notice thereof.
b. TERMINATION WITHOUT CAUSE. "Termination Without Cause" means any
termination of employment by the Company which is not "Termination With Cause"
as defined above. A resignation or voluntary departure from Company by Employee
or his death shall not be deemed Termination Without Cause under this
Agreement.
x. XXXXXXXXX. In the event that Employee's employment is Terminated
Without Cause by Company at any time (other than at the expiration of the
Term), Company shall pay to Employee the severance pay equal to Employee's
Annual Salary at the then current rate for a period equal to the remainder of
the then current Term ("Severance Period"). The severance pay shall be payable
to Employee in accordance with the Company's standard pay periods and shall be
subject to all applicable withholdings, or, in the Company's sole discretion,
in a lump sum equal to the Annual Salary for the period equal to the remainder
of the current Term, discounted to its present value as reasonably determined
by the Board.
d. POST TERMINATION OBLIGATIONS. Upon termination of employment for any
reason, Employee shall return immediately to Company all documents, property,
and other records of Company, and all copies thereof, and all Work Product
within Employee's possession, custody or control, including but not limited to
any materials containing any Trade Secrets or Confidential Information or any
portion thereof.
10. CUSTOMER NON-SOLICITATION. The relationships made or enhanced in the
course of Employee's employment with the Company belong to Company. During
Employee's employment with Company and for the period of one (1) year after
termination of Employee's employment with Company for any reason or the
Severance Period, whichever is longer (the "Limitation Period"), Employee shall
not contact, solicit or attempt to solicit, on Employee's own behalf or on
behalf of any other person or entity, any customer or prospective customer of
Company with whom Employee had contact in the two (2) years prior to the end of
Employee's employment with Company ("Restrictive Period") with a view to
offering,
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providing, selling or licensing during the Limitation Period any program,
product or service that is competitive with the Company's business as defined
in EXHIBIT B ("Company Business").
11. EMPLOYEE NON-SOLICITATION. During the Limitation Period, Employee agrees
not to call upon, solicit, recruit, or assist others in calling upon,
recruiting or soliciting any person who is or was an employee of Company during
the Restrictive Period, for the purpose of having such person work in any other
corporation, association, entity, or business that is competitive with the
Company Business.
12. NONCOMPETITION. During the Limitation Period, Employee agrees that,
without the prior written consent of Company, Employee shall not perform the
duties specified on EXHIBIT A and performed by Employee during the Restrictive
Period for any person or entity competing with the Company Business in the
territory defined in EXHIBIT B ("Territory"), provided that Company is still
engaged in the Company Business. The parties agree and acknowledge that: (i)
the periods of restriction and Territory of restriction contained in this
Agreement are fair and reasonable in that they are reasonably required for the
protection of Company and that the Territory is the area in which Employee
shall perform (or currently performs) services for Company; and (ii) by having
access to information concerning employees and actual or prospective customers
of Company, Employee shall obtain a competitive advantage as to such parties.
If, however, for any reason any court determines that the restrictions in
Sections 10 through 12 are not reasonable or that consideration is inadequate,
then such restrictions shall be interpreted, modified or re-written to include
as much of the duration, scope and geographic area in this section as will
render such restrictions valid and enforceable.
13. INDEMNIFICATION.
a. BY EMPLOYEE. Employee shall indemnify and hold harmless Company, any
affiliated corporation, and their respective shareholders, directors, officers,
agents, and employees, from and against any and all liability, including
payment of attorneys' fees, arising directly or indirectly from a violation of
Section 13.
b. BY COMPANY. Company shall indemnify and hold harmless Employee in
accordance with the indemnification obligations as set forth in Article IX,
Section 2 of the Company's Amended and Restated Bylaws dated April 29, 1995,
and the previously executed Indemnification Agreement between Company and
Employee.
14. EQUITABLE RELIEF. The parties to this Agreement acknowledge that a breach
by Employee of any of the terms or conditions of this Agreement will result in
irrevocable harm to Company and that the remedies at law for such breach may
not adequately compensate Company for damages suffered. Accordingly, Employee
agrees that in the event of such breach, Company shall be entitled to
injunctive relief or such other equitable remedy as a court of competent
jurisdiction may provide. Nothing contained herein will be construed to limit
Company's right to any remedies at law, including the recovery of damages for
breach of this Agreement.
15. SEVERABILITY. If any provision or part of any provision of this Agreement
is held invalid or unenforceable by a court of competent jurisdiction, such
holding shall not affect the enforceability of any other provisions or parts
thereof, and all other provisions and parts thereof shall continue in full
force and effect.
16. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement or the breach thereof (other than disputes with respect to alleged
violations of the covenants contained in Sections 10, 11, and 12, and the
Company's pursuit of the remedies described in Section 15 in connection
therewith) shall be settled by arbitration in Atlanta, Georgia. In such case,
both parties agree to the appointment of three (3) arbitrators, with one
arbitrator selected by each party, and the third selected by the American
Arbitration Association ("AAA"). The arbitration shall be conducted in Atlanta,
Georgia in accordance with the Commercial Arbitration Rules, regulations and
procedures of the AAA. The judgment upon the award rendered may be entered in
any court having jurisdiction thereof. The parties shall be free to pursue any
remedy before the arbitration tribunal that they shall be otherwise permitted
to pursue in a court of competent jurisdiction, and the decision of the
arbitration panel shall be final and binding on both parties.
17. ACCELERATION OF OPTIONS. Employee has been and in the future may be
awarded options to purchase shares of the Company's common stock ("Options")
pursuant to the terms of the Company's stock option plans previously, now or
hereafter in effect (collectively, the "Plans"). The following terms shall be
applicable to all Options. In the event of any conflict between the following
terms and an Option, the following terms shall control. For purposes of this
Section, "Continuous Service" means a period of continuous performance of
services by Employee for the Company, a Parent or a Subsidiary, as determined
by the Board or Committee.
a. ONGOING VESTING. Notwithstanding anything herein or in any Option to
the contrary, if Employee is terminated by the Company as a result of a
Termination Without Cause, then for purposes of subsection (a) of this Section
17 and the Options, the Options which are not qualified under Section 422 of
the Internal Revenue Code shall continue to vest over time as if Employee was
in Continuous Service during such time.
b. ACCELERATION. Notwithstanding this Section 17 or anything in an
Option to the contrary, the Options shall be deemed accelerated, fully vested
and fully exercisable in the event of a Change in Control (defined below) as
long as such acceleration and vesting does not adversely impact the
availability of pooling of interests accounting treatment, as such
determination is made by the Board in its reasonable discretion.
c. CHANGE IN CONTROL. A "Change in Control" shall be conclusively deemed
to have occurred if (and only if) any of the following shall have taken place:
(i) a change in control is reported by the Company in response to either Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended ("Exchange Act"), or Item 1 of Form 8-K
promulgated under the Exchange Act; (ii) any person (as such term is used in
Section 13(d) and
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14(d)(2) of the Exchange Act) is or becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) directly or indirectly, of securities of the
Company representing forty percent (40%) or more of the combined voting power
of the Company's then outstanding securities; or (iii) following the election
or removal of directors, a majority of the Board consists of individuals who
were not members of the Board two years before such election or removal, unless
the election of each director who was not a director at the beginning of such
two-year period has been approved in advance by directors representing at least
a majority of the directors then in office who were directors at the beginning
of the two-year period.
18. MISCELLANEOUS. This Agreement shall not be amended or modified except by a
writing executed by both parties. This Agreement shall be binding upon and
inure to the benefit of Company and its successors and assigns. Due to the
personal nature of this Agreement, Employee shall not have the right to assign
Employee's rights or obligations under this Agreement without the prior written
consent of Company. This Agreement shall be governed by the laws of the State
of Georgia without regard to its rules governing conflicts of law. This
Agreement and the attached Exhibits represent the entire understanding of the
parties concerning the subject matter hereof and supersede and terminate all
prior communications, agreements and understandings, whether oral or written,
relating to the subject matter hereof. All communications required or otherwise
provided under this Agreement shall be in writing and shall be deemed given
when delivered to the address provided below such party's signature (as may be
amended by notice from time to time), by hand, by courier or express mail, or
by registered or certified United States mail, return receipt requested,
postage prepaid. The exhibits attached hereto are incorporated herein by this
reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their hands and seals effective as of the date first above written.
COMPANY: HARBINGER CORPORATION EMPLOYEE: XXXXX X. XXXXX
By:/s/ C. Xxxxx Xxxxx Signature /s/ Xxxxx X. Xxxxx
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Title: Chairman
Address: 0000 Xxxxx Xxxx Xxxxxxxxx Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, XX 00000
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EXHIBIT A
DUTIES
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Employee: XXXXX X. XXXXX
Job Title: President and Chief Operating Officer
Duties: Attached hereto. The Duties may be revised from time to time
by mutual written agreement of the parties as an Addendum to
this Agreement.
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EXHIBIT B
COMPANY BUSINESS
TERRITORY: The following Territory is that territory in which
Employee performs services for Company: United States, The
Netherlands, Germany.
COMPANY BUSINESS: The Company is in the business of (i) providing
electronic commerce and EDI software products and services to
businesses, and (ii) providing related computer communications
network and consulting services to businesses; and (iii) any
business conducted by the Company now or hereafter.
