EMPLOYMENT AND NONCOMPETITION AGREEMENT
This EMPLOYMENT AND NONCOMPETITION AGREEMENT (this "AGREEMENT") is made as of
the Effective Date indicated below by and between SYMANTEC CORPORATION, a
Delaware corporation ("SYMANTEC"), and Xxxxxx Xxxxxx ("EMPLOYEE").
BACKGROUND
This Agreement is entered into in connection with a Combination Agreement
dated as of July 5, 1995 (the "COMBINATION AGREEMENT") between Green and Blue
Symantec and Delrina Corporation, a corporation organized under the laws of
Ontario ("DELRINA"). The Combination Agreement provides for the
recapitalization of Delrina pursuant to which Delrina will become a subsidiary
of Symantec and all the voting power of Delrina will be owned by Symantec (the
"ARRANGEMENT"). The date on which the Arrangement becomes effective will be the
effective date of this Agreement (the "EFFECTIVE DATE").
Employee is the Chief Executive Officer of Delrina and has been actively
involved in the development and marketing of Delrina's products. To preserve
and protect the assets of Delrina, including Delrina's goodwill, customers and
trade secrets of which Employee has and will have knowledge, and in
consideration for Symantec's entering into and performing under the Combination
Agreement, Employee has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements of the parties contained herein, and Employee hereby agree as
follows:
1. EMPLOYMENT. Symantec will employ Employee and Employee accepts
employment with Symantec commencing on the Effective Date. Symantec may
terminate the employment of Employee on providing such notice or severance as
required by applicable Ontario law. Symantec guarantees that all payments made
to the Employee shall not be less than what is required to be paid pursuant to
by applicable Ontario law. For purposes of calculating any amounts payable to
Employee under applicable Ontario law upon the termination of Employee's
employment, the parties agree that Employee's years as an employee of Delrina
shall be considered part of such employment.
2. DUTIES. Employee will be employed as a full-time employee of
Symantec and will serve as an Executive Vice President responsible for
communications products and reporting to Xxxxxx Xxxxxxx or his successor. At
Symantec's option, it will be entitled to reasonable use of Employee's name in
promotional, advertising and other materials used in the ordinary course of
business.
3. FULL-TIME EMPLOYMENT. Employee's employment will be on a full-
time basis. Employee will not engage in any other business or render any
commercial or professional
services, directly or indirectly, to any other person or organization, whether
for compensation or otherwise that would violate the provisions of Section 8.
Notwithstanding the foregoing, it will not be deemed a violation of Section 8
for Employee to make personal investments in publicly traded corporations
regardless of the business they are engaged in, provided that Employee does not
at any time own in excess of l0% of the issued and outstanding stock of any such
corporation.
4. SALARY. Employee's salary for the period commencing on the
Effective Date will be no less than (Can.)$356,400 per year, payable semi-
monthly, less required withholdings. Employee will be entitled to receive
annual compensation reviews on the same basis as other Symantec employees.
5. EMPLOYEE BENEFITS. Employee will be entitled to insurance,
vacation and other benefits commensurate with his position in accordance with
Symantec's standard policies in effect from time to time, including
participation in Symantec's management bonus program under which Employee will
be eligible to receive a bonus payable quarterly on Employee's performance of
his objectives for the prior quarter, which bonus will be based on a target
amount equal to 40% of Employee's base salary paid during such prior quarter.
6. REIMBURSEMENT OF BUSINESS EXPENSES. Symantec will, in accordance
with Symantec's policies in effect from time to time, reimburse Employee for all
reasonable business expenses incurred by Employee in connection with the
performance of his duties under this Agreement, including, without limitation,
reasonable expenditures for business entertainment and travel, upon submission
of the required documentation required pursuant to Symantec's standard policies
and record keeping procedures.
7. CONFIDENTIALITY. Simultaneously with the execution of this
Agreement, Employee is executing and delivering and hereby adopts and agrees to
be bound by Symantec's standard Assignment of Inventions and Confidentiality
Agreement, a copy of which is attached to this Agreement as EXHIBIT A (the
"ASSIGNMENT OF INVENTIONS AND CONFIDENTIALITY AGREEMENT").
8. AGREEMENT NOT TO COMPETE.
(a) For the two-year period (reduced to one year if Employee's
employment is terminated by Symantec) following the Effective Date and for so
long thereafter as Employee is employed by Symantec or a subsidiary of Symantec,
Employee shall not, directly or indirectly, individually or as an employee,
partner, officer, director or shareholder (except to the extent permitted in
Section 3 above) or in any other capacity whatsoever of or for any person, firm,
partnership, company or corporation other than Symantec or its subsidiaries:
(i) Own, manage, operate, sell, control or participate
in the ownership, management, operation, sales or control of or be connected in
any manner with any business engaged, in the geographical areas referred to in
Section 8(b) below, in the design, research, development, marketing, sale
(excluding licensing or sales of multiple kinds and brands of software as part
of the management of a reseller or distributor), or licensing of computer
software that is substantially similar to or competitive with any fax,
communications (for the purposes of this Section 8, the term "communications" as
applied to software will be defined to be limited to
Internet, datacom, voice or paging software) or forms software products created,
distributed or known by him to be under development by Delrina or any of its
subsidiaries prior to the Effective Date;
(ii) To Employee's knowledge, directly or indirectly
develop computer software that is substantially similar to or competitive with
any other fax, communications or forms computer program or products the creation
or development of which Employee participated in prior to the termination of
Employee's employment with Symantec for any one or more of the following or any
of their affiliates: Microsoft, McAfee, Stack, Attachmate, Wall Data, DataStorm
(Procomm), Global Village and Xpedite.
(iii) Recruit, attempt to hire, solicit, assist others in
recruiting or hiring, or refer to others concerning employment, in or with
respect to the geographical areas referred to in Section 8(b) below, any person
who is an employee of Delrina or Symantec or any of their subsidiaries or induce
or attempt to induce any such employee to terminate his employment with
Symantec, Delrina or any of their subsidiaries.
(b) The geographical areas in which the restrictions provided
for in this Section 8 apply include all cities, counties, provinces and states
of the United States and Canada. Employee acknowledges that the scope and
period of restrictions and the geographical area to which the restrictions
imposed in this Section 8 applies are fair and reasonable and are reasonably
required for the protection of Symantec and that this Agreement accurately
describes the business to which the restrictions are intended to apply.
(c) It is the intent of the parties that the provisions of this
Section 8 will be enforced to the fullest extent permissible under applicable
law. If any particular provision or portion of this Section is adjudicated to
be invalid or unenforceable, this Agreement will be deemed amended to revise
that provision or portion to the minimum extent necessary to render it
enforceable. Such amendment will apply only with respect to the operation of
this paragraph in the particular jurisdiction in which such adjudication was
made.
(d) Employee acknowledges that any material breach of the
covenants of this Section 8 will result in immediate and irreparable injury to
Symantec and, accordingly, consents to the application of injunctive relief and
such other equitable remedies for the benefit of Symantec as may be appropriate
in the event such a breach occurs or is threatened. The foregoing remedies will
be in addition to all other legal remedies to which Symantec may be entitled
hereunder, including, without limitation, monetary damages.
9. TERMINATION (e)9. SURVIVAL. Employee's and Symantec's
obligations under Sections 5, 6, 7, 8, 9, and 10 (i) of this Agreement will
survive the termination of Employee's employment by Symantec.
10. MISCELLANEOUS.
(a) NOTICES. Any and all notices permitted or required to be
given under this Agreement must be in writing. Notices will be deemed given (i)
when personally received
or when sent by facsimile transmission (to the receiving party's facsimile
number), (ii) on the first business day after having been sent by commercial
overnight courier with written verification of receipt, or (iii) on the third
business day after having been sent by registered or certified mail from a
location on the United States mainland or Canada, return receipt requested,
postage prepaid, whichever occurs first, at the address set forth below or at
any new address, notice of which will have been given in accordance with this
Section 10(a):
If to Symantec: Attn. President
Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
With a copy to: the General Counsel at the
same address
If to Employee:
Tel:
with a copy to:
Attn:
Tel:
Fax:
(b) AMENDMENTS. This Agreement, including Exhibit A hereto,
contains the entire agreement and supersedes and replaces all prior agreements
between Symantec and Employee or Delrina and Employee concerning Employee's
employment. This Agreement may not be changed or modified in whole or in part
except by a writing signed by the party against whom enforcement of the change
or modification is sought.
(c) SUCCESSORS AND ASSIGNS. This Agreement will not be
assignable by either Employee or Symantec, except that the rights and
obligations of Symantec under this Agreement may be assigned to a corporation
which becomes the successor to Symantec as the result of a merger or other
corporate reorganization and which continues the business of Symantec, or any
other subsidiary of Symantec, provided that Symantec guarantees the performance
by such assignee of Symantec's obligations hereunder.
(d) GOVERNING LAW. This Agreement will be governed by and
interpreted according to the substantive laws of the Province of Ontario without
regard to such province's conflicts law. The parties agree that the courts in
the city of Vancouver, British Columbia will be the exclusive venue for the
adjudication of any disputes hereunder.
(e) NO WAIVER. The failure of either party to insist on strict
compliance with any of the terms of this Agreement in any instance or instances
will not be deemed to be a waiver of any term of this Agreement or of that
party's right to require strict compliance with the terms of this Agreement in
any other instance.
(f) SEVERABILITY. Employee and Symantec recognize that the
limitations contained herein are reasonably and properly required for the
adequate protection of the interests of Symantec. If for any reason a court of
competent jurisdiction or binding arbitration proceeding finds any provision of
this Agreement, or the application thereof, to be unenforceable, the remaining
provisions of this Agreement will be interpreted so as best to reasonably effect
the intent of the parties. The parties further agree to replace any such
invalid or unenforceable provisions with valid and enforceable provisions
designed to achieve, to the extent possible, the business purposes and intent of
such unenforceable provisions.
(g) COUNTERPARTS. This Agreement may be executed in
counterparts which when taken together will constitute one instrument. Any copy
of this Agreement with the original signatures of all parties appended will
constitute an original.
(h) EFFECT OF AGREEMENT. This Agreement will be void and have
no effect if the Effective Date does not occur on or before December 31, 1995.
(i) PAYMENT OF COSTS. The prevailing party in any action
brought hereunder will be entitled to an award of attorneys' fees and costs, and
all court fees, will be paid by the losing party, and the court will be
authorized to make such determinations.
IN WITNESS WHEREOF, this Agreement is made and effective as of the
day and year first above written.
SYMANTEC CORPORATION EMPLOYEE
a Delaware corporation
By: /s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxxxx
Vice President
Exhibit A to Exhibit 4.5
ASSIGNMENT OF INVENTIONS AND CONFIDENTIALITY AGREEMENT
This agreement is entered into as of _________ by and between ________
(hereinafter "Employee") and Symantec Corporation, a Delaware Corporation,
having its principal place of business at _________________ (hereinafter
"Symantec").
In consideration of his/her employment by Symantec and of the salary or
wages and other benefits received by him/her during such employment, he/she
agrees that the following terms and conditions shall govern his/her employment
relationship with Symantec in regard to inventions and discoveries, works of
authorship, and proprietary information, confidential information and trade
secrets:
1. INVENTIONS AND DISCOVERIES
A. Employee agrees that all inventions and discoveries,
whether patentable or unpatentable, which are conceived or
made by him/her during his/her employment, either solely or
jointly with others, and which relate in any way to the
products or business of Symantec, shall belong to Symantec.
Employee agrees that he/she has been notified and
understands that the provisions of this paragraph do not
apply to any Invention that qualifies fully under the
provisions of Section 2870 of the California Labor Code,
which states as follows:
ANY PROVISION IN ANY EMPLOYMENT AGREEMENT WHICH PROVIDES
THAT AN EMPLOYEE SHALL ASSIGN OR OFFER TO ASSIGN ANY OF HIS
OR HER RIGHTS IN AN INVENTION TO HIS OR HER EMPLOYER SHALL
NOT APPLY TO AN INVENTION THAT THE EMPLOYEE DEVELOPED
ENTIRELY ON HIS OR HER OWN TIME WITHOUT USING THE
EMPLOYER'S EQUIPMENT, SUPPLIES, FACILITIES, OR TRADE SECRET
INFORMATION EXCEPT FOR THOSE INVENTIONS THAT EITHER: (1)
RELATE AT THE TIME OF CONCEPTION OR REDUCTION TO PRACTICE
OF THE INVENTION TO THE EMPLOYER'S BUSINESS, OR ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT OF THE
EMPLOYMENT RESEARCH OR DEVELOPMENT OF THE EMPLOYER, OR (2)
RESULT FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE
EMPLOYER. TO THE EXTENT A PROVISION IN AN EMPLOYMENT
AGREEMENT PURPORTS TO REQUIRE AN EMPLOYEE TO ASSIGN AN
INVENTION OTHERWISE EXCLUDED FROM BEING REQUIRED TO BE
ASSIGNED UNDER CALIFORNIA LABOR CODE SECTION 1870 (A), THE
PROVISION IS AGAINST THE PUBLIC POLICY OF THIS STATE AND IS
UNENFORCEABLE.]
B. Employee agrees that he/she will disclose to Symantec in
writing any inventions and discoveries covered by this
Agreement. Employee further agrees that, without further
remuneration, he/she will do any and all of the following
acts at the request and expense of Symantec:
(1) execute any assignments of Symantec or its nominee
of the entire right, title, and interest in and to
any such inventions and discoveries
(2) execute any other proper instruments or documents
necessary or desirable in applying for and obtaining
patents on such inventions and discoveries in the
United States and foreign countries;
(3) to the extent that Employee fails to so execute such
assignments or instruments, he/she hereby appoints
the Secretary of Symantec as his/her attorney in
fact to execute such assignments on such Employee's
behalf; and
(4) to cooperate in the prosecution or defense of any
claims, lawsuits, or other proceedings involving
such inventions and discoveries.
2. WORKS OF AUTHORSHIP
A. Employee agrees that any works of authorship such as
writings, computer programs, and the like which are
authored or created by him/her during his/her employment,
either solely or jointly with others, and which relate in
any way to the business of Symantec shall belong to
Symantec whether copyrightable or not.
B. Employee further agrees that without further remuneration,
he/she will do any and all of the following acts at the
request and expense of Symantec:
(1) execute any assignment to Symantec or its nominee of
the entire right, title, and interest in and to any
such works of authorship;
(2) execute any other proper instruments or documents
necessary or desirable in applying for and obtaining
registration of copyrights on such works of
authorship in Canada and foreign countries,
including renewal papers when appropriate; and
(3) cooperate in the prosecution or defense of any
claims, lawsuits, or other proceedings involving
such works or authorship.
C. Employee hereby waives his/her right to enforce any moral
or author's right which Employee may have in such works of
authorship.
3. PROPRIETARY INFORMATION AND TRADE SECRETS
A. Employee agrees that, in performing work for Symantec,
he/she will not knowingly use any patented inventions,
trade secrets, confidential information or proprietary
information obtained from third parties, including any
prior employer or any other organization or individual.
B. Employee agrees that he/she will retain in confidence any
and all proprietary information, confidential information
and trade secrets belonging to Symantec, or belonging to a
third party and in the possession of Symantec, which may
come into his/her possession during his/her employment.
Employee further agrees that he/she will refrain from doing
any of the following acts with respect to such proprietary
information, confidential information and trade secrets,
both during his/her employment and thereafter, without
first obtaining the consent in writing of an officer of
Symantec:
(1) communicate such proprietary information,
confidential information or trade secret to any
person outside Symantec or to any other firm,
association, or corporation; and
(2) use such proprietary information, confidential
information or trade secret for the private benefit
of himself/herself or for the benefit of any person
outside or any other firm, association, or
corporation.
C. Employee understands and agrees that the proprietary
information and trade secrets of Symantec shall include,
but shall not be limited to, the following:
(1) inventions, discoveries and computer programs not
yet patented or published;
(2) unpublished technical specifications, data, source
codes, object codes, drawings and descriptions on
the proprietary hardware, software, and combined
hardware/software products and processes of
Symantec;
(3) current engineering, research, development, and
design projects and research and development data;
(4) manufacturing processes and methods and apparatus
and equipment not generally available or known to
the public;
(5) non-public business information such as product
costs, vendor and customer lists, lists of approved
components and sources, price
lists, production schedules, business plans and
sales and profit and loss information not yet
announced to or disclosed to the public;
(6) any other information not generally available to the
public.
D. Employee further agrees that all source code printouts,
computer programs on storage media, records, files,
memoranda, reports, price lists, customer lists, plans,
sketches, documents, equipment, prototypes, and the like,
which relate to the business of Symantec and which he/she
uses, prepares, or comes into contact with during his/her
employment shall remain the sole property of Symantec and
shall be returned to Symantec on termination of his/her
employment.
4. MISCELLANEOUS
A. Employee understands that this Agreement may not be changed
or terminated orally, and no change, termination or waiver
of any of the provisions thereof will be binding unless in
writing and signed by an Officer of Symantec.
B. Employee further understands that any agreement previously
executed by him/her during his/her employment with Symantec
shall continue in force and effect as to any subject matter
to which it applied, but in all other respects is
superseded by this Agreement.
C. This Agreement is not a contract for or guarantee of
employment.
IN WITNESS WHEREOF, the parties have entered into this Agreement
effective as of the date set forth above.
SYMANTEC CORPORATION EMPLOYEE
____________________ ____________________
Vice President
SIGNATURE PAGE TO
ASSIGNMENT OF INVENTIONS AND CONFIDENTIALITY AGREEMENT
