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EXHIBIT 10.24
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into effective as of the 4th
day of December, 1996, by and between HARBINGER CORPORATION ("HC"), including
its wholly owned affiliates and Xxxxxx X. Xxxxxx ("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.
4. 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.
5. 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 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.
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6. 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.
7. 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.
8. 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").
9. 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 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.
10. 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
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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).
11. 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.
12. 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.
13. 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: Xxxxxx X. Xxxxxx
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Signature
Date:
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Address:
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