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EXHIBIT 10.2
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into effective as of the day
of April 1999, by and between HARBINGER CORPORATION ("HC"), including its wholly
owned affiliates and Xxxxxxx Xxxxxxx ("Employee"), an individual. For and in
consideration of the mutual covenants described below, the parties hereto agree
as follows:
1. EMPLOYMENT. HC 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"). Such Duties may be revised from time
to time at the sole discretion of HC. Employee agrees to devote his or her full
time and energy to the furtherance of the business of HC and shall not during
the term hereof work or perform services in any advisory or other capacity for
any individual, firm, company, or corporation other than for HC without HC's
prior written consent. This Agreement may be supplemented from time to time by
rules and regulations of employment issued by HC, including, without limitation,
such rules and regulations described in the HC employee handbook, and Employee
agrees to adhere to these rules and regulations.
(b) If Employee desires to perform any services during the term hereof for
anyone other than HC, whether or not Employee is compensated, then Employee
agrees to contact an officer of HC to discuss this matter. HC will review the
request and advise Employee of HC's approval or disapproval of the proposed
outside work, in HC's sole discretion. In making its decision, HC may consider
such factors as whether the outside work may be harmful to the business of HC or
interfere with Employee's ability to satisfactorily discharge his or her Duties,
whether the outside work is based directly or indirectly on a business practice
of HC or idea that was conceived by Employee while on HC's payroll, or whether
such outside work could result in a violation of any covenants of Employee in
this Agreement. In this case, HC will notify Employee of HC's approval or
disapproval of such request to perform outside work within a reasonable period
of time after HC is notified by Employee of the request to perform such
services. Unless HC grants such approval in writing, Employee agrees to refrain
from such outside work.
3. COMPENSATION. HC shall pay as compensation for all the services to be
rendered the salary and additional compensation, if any, described in Exhibit B
(the "Employee Compensation") and as the Employee Compensation may be determined
by HC in its sole discretion from time to time. HC's obligation to pay Employee
any Employee Compensation shall cease upon termination of Employee's employment
with HC. Employee's annual salary shall be prorated on a daily basis for the
years in which Employee commences and terminates his or her employment
relationship with HC.
3. TERM AND TERMINATION. This Agreement shall be effective upon execution
by the parties and shall remain in full force and effect for an indefinite
period of time. The parties agree that Employee's term of employment may be
terminated at any time, for any reason or for no reason, for cause or not for
cause, with or without notice, by HC or Employee. Upon termination of employment
for any reason, Employee shall return immediately to HC all documents, property,
and other records of HC, and all copies thereof, within Employee's possession,
custody or control, including but not limited to any materials containing any
Trade Secrets or Confidential Information (as defined below) or any portion
thereof.
4. OWNERSHIP.
(a) 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 the date of this Agreement or in the future, either (i) while retained
by HC and that have been or will be paid for by HC, or (ii) while employed by HC
(whether developed during work hours or not). All Work Product shall be
considered work made for hire by the Employee and owned by HC. If any of the
Work Product may not, by operation of law, be considered work made for hire by
Employee for HC, or if ownership of all right, title, and interest of the
intellectual property rights therein shall not otherwise vest exclusively in HC,
Employee hereby assigns to HC, and upon the future creation thereof
automatically assigns to HC, without further consideration, the ownership of all
Work Product. HC 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
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necessary or desirable to transfer, perfect, and defend HC's ownership of the
Work Product that are reasonably requested by HC.
(b) Employee agrees that during the term of employment, any money or other
remuneration received by Employee for services rendered to a customer or
potential customer of HC shall be the property of HC.
5. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) HC may disclose to Employee certain Trade Secrets and Confidential
Information (defined below). Employee acknowledges and agrees that the Trade
Secrets and Confidential Information are the sole and exclusive property of HC
(or a third party providing such information to HC) and that HC or such third
party owns all worldwide rights therein under patent, copyright, trade secret,
confidential information, or other property right. Employee acknowledges and
agrees that the disclosure of the Trade Secrets and Confidential Information to
Employee does not confer upon Employee any license, interest or rights of any
kind in or to the Trade Secrets or Confidential Information. Employee may use
the Trade Secrets and Confidential Information solely for the benefit of HC
while Employee is employed or retained by HC. Except in the performance of
services for HC, Employee will hold in confidence and not reproduce, distribute,
transmit, reverse engineer, decompile, disassemble, or transfer, directly or
indirectly, in any form, by any means, or for any purpose, the Trade Secrets or
the Confidential Information or any portion thereof. Employee agrees to return
to HC, upon request by HC, the Trade Secrets and Confidential Information and
all materials relating thereto.
(b) Employee's obligations under this Agreement with regard to the Trade
Secrets shall 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 shall remain in effect while
Employee is employed or retained by HC and for three (3) years thereafter. As
used herein, "Trade Secrets" means information of HC, its licensors, suppliers,
customers, or prospective licensors or customers, including, but not limited to,
technical or nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans, or a list of actual or potential customers or suppliers,
which (a) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use; and (b) is the subject
of efforts that are reasonable under the circumstances to maintain its secrecy.
As used herein, "Confidential Information" means information, other than Trade
Secrets, that is of value to its owner and is treated as confidential,
including, but not limited to, future business plans, licensing strategies,
advertising campaigns, information regarding executives and employees, and the
terms and conditions of this Agreement.
6. CUSTOMER NON-SOLICITATION.
Employee agrees that for a period of eighteen (18) months immediately
following termination of Employee's employment with HC for any reason,
including, without limitation, voluntary resignation from employment by Employee
("Non-Solicitation Period"), Employee shall not, on Employee's own behalf or on
behalf of any person, firm, partnership, association, corporation or business
organization, entity or enterprise, solicit, contact, call upon, communicate
with or attempt to communicate with any customer or prospect of HC, or any
representative of any customer or prospect of HC, with a view to sale or
providing of any deliverable or service competitive or potentially competitive
with any deliverable or service sold or provided or under development by HC
during the time of two (2) years immediately preceding cessation of Employee's
employment with HC, provided that the restrictions set forth in this paragraph
shall apply only to customers or prospects of HC, or representatives of
customers or prospects of HC, with which Employee had contact during such two
(2) year period. The actions prohibited by this paragraph shall not be engaged
in by Employee directly or indirectly, whether as manager, salesperson, agent,
technical support, sales, or service representative, or otherwise.
7. EMPLOYEE NON-SOLICITATION.
Employee agrees that Employee shall not call upon, solicit, recruit, or assist
others in calling upon, recruiting or soliciting any person who is or was an
employee of HC within the Non-Solicitation Period, for the purpose of having
such person work in any other corporation, association, entity, or business
engaged in providing any of the following: (i) development and operation of
computer networks (the "Hosts") to facilitate electronic data interchange and
electronic commerce ("EDI") transactions and cash management services; (ii)
development, marketing, distribution, and licensing of personal computer,
workstation and networking software to facilitate EDI and transaction processing
and other communications with the Hosts; (iii) development, marketing,
distribution, and licensing of software products for operation on personal
computers and workstations relating to the performance of cash management
services, including balance and transaction reporting, transfers, stop payments,
account reconciliation, check writing, financial record keeping, messaging, and
information services; and (iv) consulting, training, and implementation of the
products and services described in (i), (ii) and (iii) above (collectively the
"Company Business").
8. NONCOMPETITION.
Employee agrees that, without the prior written consent of HC, Employee shall
not, so long as Employee is employed hereunder and for a period of one (1) year
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thereafter within the area described in Exhibit C (the "Territory"), directly or
indirectly perform the Duties on behalf of any person, firm, corporation, or
other entity in the Company Business, if the Company is also then still engaged
in the Company Business.
9. WARRANTIES OF EMPLOYEE.
(a) Employee warrants to HC that (i) Employee is not presently under any
contract or agreement with any party that will prevent Employee from performing
the Duties assigned by HC, and (ii) Employee is not in breach of any agreement
with respect to any trade secrets or confidential information owned by any other
party.
(b) Employee agrees to indemnify and hold harmless HC, 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 10(a).
10. 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 HC and that the remedies at law for such breach
may not adequately compensate HC for damages suffered. Accordingly, Employee
agrees that in the event of such breach, HC 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 HC's right to any
remedies at law, including the recovery of damages for breach of this Agreement.
11. 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.
12. 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 HC 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
HC. This Agreement shall be governed by the laws of the States of Georgia,
Michigan, Texas, and California 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
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.
HARBINGER CORPORATION
By:
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Title: Xxxxxxx Xxxx, Director of Human Resources
Date:
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0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
EMPLOYEE: Xxxxxxx Xxxxxxx
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Signature
Date:
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Address:
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