Exhibit 10.5
(COREL LOGO)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 1 day of January 2003 between Corel
Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ("the
Employer") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ of Pharos, Fishery Road, ▇▇▇▇, Berks SL6 1UN
("the Employee").
WHEREAS the Employer and the Employee wish to enter into an agreement ("this
Agreement" which includes Appendix A hereto) pursuant to which the Employee will
provide the Employee's services to the Employer as set out below, and the
Employer will hire and retain the services of the Employee as an employee of the
Employer.
IT IS AGREED that, in consideration of the mutual covenants and agreements set
out below, the parties hereby mutually covenant and agree as follows:
1. EMPLOYMENT TERM
1.1 The employment under this Agreement ("the Employment") shall commence 1st
January 2003. That date from which the Employee's period of continuous
employment will be calculated for statutory purposes shall be 1st October
2001, Subject to Clause 13 below, the Employment shall be for an indefinite
term.
2. EMPLOYMENT-DUTIES
2.1 The Employee is employed by the Employer on a full-time basis as Executive
Vice President, Europe, the Middle East and Africa (EMEA) Operations
reporting to the Chief Executive Officer. The Employee's normal duties
include supervision of sales, marketing and finance functions for Employer
in EMEA. In addition to the Employee's normal duties, the Employee may be
required to undertake other duties from time to time with reasonable notice
2.2 During the Employment, the Employee shall devote the Employee's full time,
attention and skill to the business and affairs of the Employer and any
Associated Employer (as defined herein and including, without limitation,
Corel UK Limited. Corel GmbH and Corel S.A.R.L.) for whom the Employee is
required to perform the duties and responsibilities set out in this
Agreement. Furthermore, during the Employment the Employee shall not,
without the prior written consent of the Employer, directly or indirectly
carry on or be engaged concerned or interested in any other business,
trade, occupation or activity which interferes with the Employment or which
is for the benefit of any person, corporation or enterprise whose business
interests are either competitive or in conflict with those of the Employer
or any Associated Employer.
2.3 The Employee shall comply with all policies, rules or codes of conduct of
the Employer or any Associated Employer that are applicable to the Employee
from time to time and as amended by the Employer in its absolute
discretion. In particular, the Employee will comply with the policies
applicable to her from time to time in relation to entering into any
contract or similar commitment or signing any document in the name of or on
behalf of the Employer or any Associated Employer and is excluded from
doing so other than as authorised.
Corel Corporation Corporate Headquarters, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Tel.:▇-▇▇▇-▇▇▇-▇▇▇▇) Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇.▇▇▇▇▇.▇▇▇
3. HOURS OF WORK
3.1 The Employee's normal hours of work are 37.5 hours per week but the
Employee is required to work such additional hours and/or more flexible
hours (that is, different start and finish times) for no additional
remuneration as may be necessary for the proper performance of the
Employee's duties and the proper functioning of the business.
3.2 To the extent necessary, the Employee agrees with the Company that the
limit on the Employee's working time of not more than an average of 48
hours per week over a 17 week period imposed by r.4(1) Working Time
Regulations 1998 shall not apply during the Employment subject to the right
of the Employee to terminate the agreement provided for in this Clause 3.2
on three (3) months' written notice to the Employer given at any time.
4. PLACE OF WORK
4.1 The Employee's normal place of work shall be the Corel UK limited offices
at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, or any such
place of business of the Employer or Associated Employer as the Employer
may reasonably determine from time to time within a 30 mile radius of the
normal place of work. The Employee shall be required to travel both inside
and outside of the UK in connection with the performance of the Employee's
duties.
5. SALARY AND BENEFITS
5.1 In consideration of all services rendered by the Employee in the course of
the Employment, the Employee shall receive a gross annual salary of
L140,000 ("Base Salary"), subject to statutory withholdings and deductions.
Base Salary shall be paid by equal monthly instalments on the 25th of each
month in arrears by credit transfer. Base Salary shall be reviewed annually
by the Employer and may (if at all) be increased from time to time by such
amount as the Employer may in its absolute discretion decide and notify to
the Employee in writing.
5.2 In addition to Base Salary, the Employee will be eligible for an incentive
bonus of L95,000 based upon the successful realization of certain
revenue, pre-tax operating income and/or other targets to be established
each year in advance by the Employer. Notwithstanding the foregoing, the
Employee acknowledges that Incentive Bonus shall be governed by a separate
written agreement (the "Compensation Plan") between the Employee and the
Employer which shall supercede and replace the provisions referred to in
this Section 5.2 without the need for any amendment to this Agreement. The
Employee agrees to execute such Compensation Plan upon its receipt.
Thereafter, the Employee agrees to execute such further Compensation Plans,
as they may be amended from time to time, at the request of the Employer
5.3 Employee may receive a separate annual bonus at the sole and absolute
discretion of the Employer's Board of Directors. The Employee acknowledges
that she has no expectation to any bonus in any year, that the payment of
said bonus for one or more years shall not affect the absolute discretion
exercisable by the Board regarding any future bonus and that said
discretion shall not be effected by any representation to the contrary.
5.4 The Employee shall, in accordance with the Employer's established practices
and policies as amended from time to time, be eligible to participate in
such additional benefit schemes as the Employer may in its discretion
provide from time to time. The Employee's entitlement under any such
schemes shall be subject to the scheme rules in force from time to time.
5.5 The Employee may be invited to participate in such stock, stock option or
similar incentive plans as Employer may in its absolute discretion
determine from time to time. The Employee's rights under any such plan
shall be subject to the rules of such plan as amended by the Employer from
time to time and do not form part of the Employee's rights under this
contract.
5.6 The Employee acknowledges having received a description of the benefit
schemes (other than salary, incentive bonus and discretional annual bonus)
in force as of the date of this Agreement and further acknowledges that
except as set out in this Agreement, the Employee is entitled to no further
benefits. The Employer reserves the right in its absolute discretion to
vary or discontinue the provision of any and all benefits provided under
this Agreement.
5.7 The Employer may at its discretion provide the Employee with a car
allowance of L1300 per month which shall be reviewed periodically by
the Employer at its sole discretion. Such allowance shall be paid at the
same time as Salary is paid and subject to any statutory withholdings or
deductions.
5.8 The Employer will reimburse the Employee for all petrol receipts, both
business mileage and personal mileage. The personal mileage will be subject
to appropriate tax legislation and requirements.
6. PENSION ARRANGEMENTS
6.1 The Employee is eligible to receive Employer pension contributions to a
person pension plan 75% subject to the "allowable maximum" as defined under
the Income and Corporation Taxes Act, as said plan may be amended from time
to time. The Employer reserves the right to cease Employer contributions to
the Plan by giving the Employee three months' written notice.
6.2 A contracting-out certificate is not currently in force in respect of the
Employee's Employment.
7. EXPENSES
7.1 The Employer shall reimburse the Employee in respect of out-of-pocket
expenses properly and reasonably incurred by the Employee wholly,
exclusively and necessarily in or about the performance of the Employee's
duties provided that any expense claim is supported by satisfactory
documentation and made in accordance with the Employer's expenses policy in
force from time to time.
8. HOLIDAY
8.1 The Employee shall be entitled to 30 working days' paid annual holiday
(which accrues at the rate of 2.50 days per complete month of service) to
be taken at times approved of by and agreed in advance with the Chief
Executive Officer, in addition to the usual public and bank holidays. The
holiday year is 1 January to 31 December inclusive in each year. No more
than 10 days may normally be taken at one time. A maximum of 5 days holiday
may be carried forward from one holiday year to the next but only with the
prior written approval of the Chief Executive Officer and provided it is
taken by 31 March in the holiday year to which it has been carried forward.
The Employer may exceptionally agree to other arrangements regarding the
carry forward of holiday prior to the end of the relevant holiday year,
which arrangements will be in writing and signed by both parties.
8.2 Subject to relevant law, any accrued holiday entitlement, which is not
taken or carried forward in accordance with Clause 9.1, will lapse and the
Employee will not be entitled to payment in lieu thereof.
8.3 Holiday entitlement in the holiday years in which the Employment starts or
ends shall be calculated at the rate of 2.50 for each complete month of
employment.
8.4 Upon termination of the Employment, the Employee's accrued holiday
entitlement will be calculated pro rata to the date of termination in
accordance with Clause 9.3 above and the appropriate amount will be paid to
the Employee, or if holiday days have been taken in excess of the
Employee's accrued entitlement, the Employer will deduct an amount in
respect of the excess from the Employee's final payment of wages.
8.5 The Employer may require the Employee to take any accrued but untaken
holiday in any period during which the Employee is not required to perform
any duties or at any time after either party has served notice of
termination.
9. INCAPACITY DUE TO SICKNESS OR INJURY
9.1 As soon as possible on the first day of absence, the Employee must notify
the Employer by telephone of the fact of absence due to sickness or injury,
indicate the nature of sickness or injury and, if possible, how long the
Employee is likely to be absent. If the Employee is unable to use the
telephone, the Employee should ask someone else to do this on the
Employee's behalf.
9.2 For absences of up to 7 successive calendar days, the Employee will be
required to complete and sign a self-certification form upon the Employee's
return to work (but the Employer reserves the right to require the Employee
to provide a doctor's certificate to substantiate the reasons for absence).
9.3 For absences of 8 successive calendar days or more, the Employee will be
required to submit a medical certificate provided and signed by a doctor or
a hospital in respect of that period of absence. Thereafter, medical
certificates must be provided on a weekly basis.
9.4 The Employer will pay Statutory Sick Pay ("SSP") where the Employee
qualifies for it subject to and in accordance with the relevant statutory
rules that apply from time to time. The Employee's qualifying days for SSP
purposes are Monday to Friday inclusive of both days.
9.5 There is no general entitlement to Employer sick pay. However, the Employer
may at its sole discretion pay the Employee an ex gratia allowance
("sickness allowance") of an amount equal to the Employee's Salary less SSP
and/or any social security benefits recoverable by the Employee. Any
sickness allowance that the Employer decides to pay will, generally, be
paid for a period of up to 3 months in aggregate in any 12 month period,
the first day of absence being the first day of the 12 month period for
calculating the accumulation of benefit. The payment period may be
extended, exceptionally, either at an amount equal to full sickness pay or
some lesser rate, entirely at the discretion of the Employer.
9.6 In the event of sickness or injury being caused by negligence or any third
party and the Employee being paid sickness allowance by the Employer during
any period of absence attributable to such sickness or injury, the Employee
will take all reasonable steps to claim damages in respect thereof.
Sickness allowance will be regarded as a loan to be repaid in the event of
a successful claim.
10. MEDICAL EXAMINATION
During the Employment, the Employer may require the Employee to be examined
by a medical practitioner nominated by the Employer at its expense.
11. DATA PROTECTION
11.1 The Employee hereby acknowledges that the Employee has signed the
Employer's Personal Data Consent Form ("the Consent Form") by which the
Employee consents to the processing, disclosure and transfer of personal
data and sensitive personal data provided by the Employee to the Employer
or any Associated Employer in accordance with legal requirements and
including without limitation the specific purposes identified in the
Consent Form.
11.2 In addition, the Employee agrees to treat any personal data relating to
other employees or customers of the Company or Associated Employer to which
the Employee has access in the course of the Employment, in accordance with
all legal requirements. In particular, the Employee will not use such data
other than in connection with and to the extent necessary for the purposes
of the Employment. Any infringement could result in the invoking of
disciplinary proceedings against the Employee.
12. TERMINATION
12.1 No notice or any payment in lieu of notice will be given where the Employer
is entitled to dismiss the Employee on a summary basis. The Employer
reserves the right to suspend the Employee with pay from duty in connection
with the investigation of summary dismissal grounds. Without prejudice to
the generality of this Clause 13.1, the Employer may terminate the
Employment with immediate effect at any time if the Employee;
12.1.1 commits any serious or persistent breach or non-observance of any of
the terms, conditions or stipulations contained in this Agreement or
any of the policies, rules or codes of conduct of the Employer or any
regulatory body in force and as amended from time to time;
12.1.2 is guilty of gross misconduct or gross negligence in connection with
or affecting the business or affairs of the Employer or any Associated
Employer form which the Employee is required to perform duties;
12.1.3 is guilty of conduct which brings or is likely to bring the Employee
or the Employer or any Associated Employer into disrepute;
12.1.4 is convicted of an arrestable offence (other than an offence under
road traffic legislation for which a non-custodial penalty is
imposed); or
12.1.5 engages in any act which, directly or indirectly, results in the
Executive being unable to travel freely and without difficulty between
the United Kingdom, any member of the EEC, the United States and
Canada.
12.2 The Employment may be terminated by mutual agreement of the parties in
writing, in which event the Employee shall continue to accrue and receive
the Salary and benefits up to the agreed date of termination.
12.3 The Employment will automatically terminate without the need for prior
advance notice or payment in lieu of notice upon the Employee attaining the
age of 65 if the Employee is still employed by the Employer immediately
before the Employee's 65th birthday.
12.4 The Employment will automatically terminate by operation of law in the
event of the death of the Employee.
12.5 Without limitation to the termination provisions of 13.1, 13.2, 13.3, 13.4,
and 13.7, the Employment may also be terminated with notice. The Employment
may be terminated by the Employee giving three (3) months written notice.
The Employment may be terminated by the Employer giving twelve (12) months
written notice. In the event there is a Change of Control (as defined in
Schedule A hereto) and the Employer terminates the Employment with notice
under this Clause 13.5 during the period beginning one (1) month prior to
the Change of Control and ending six (6) months following the change of
control, the Employer shall be required to provide eighteen (18) months
written notice (instead of the aforementioned twelve (12) months written
notice). The Company reserves the right at its absolute discretion to
terminate the Employment under this Clause 13.5 by paying Base Salary and
benefits (as defined at Clause 5.1 above), and no more, for the length of
the notice period specified above in lieu of notice.
The Employment may be terminated by the Employer giving 12 months' written
notice in the following situations:
13.5.1 the Parent Company and its subsidiaries, taken as a whole,
cease to operate as a going concern;
13.5.2 any action by the Corporation without the Executive's consent
that constitutes constructive termination of the Executive's
employment with the Corporation, including (i) any material reduction
in the Executive's titles, reporting relationships, powers, authority,
duties or responsibilities; (ii) any reduction in the Executive's base
salary; or (iii) any material reduction in the value of the
Executive's employee group insurance or health benefit plans and
programmes;
13.5.3 the Corporation fails to pay, when due, any amount payable by
it to the Executive pursuant to this Agreement;
13.5.4 any term of the Executive's employment with the Corporation is
changed without the Executive's consent in any proceedings under any
bankruptcy, reorganization, arrangement, dissolution, winding-up or
liquidation statute or law of any jurisdiction, including the
Companies' Creditors Arrangement Act (Canada).
12.6 On termination of the Employment for whatever reason and howsoever arising,
the Employee shall immediately:
12.6.1 Deliver up to the Employer all property, documents including without
limitation notes, memoranda, correspondence and other material on
which data or information is recorded or stored and confidential or
other information of the Employer, any Associated Employer or any
other third party which has been entrusted to the Employer which is
under the Employee's control or possession and the Employee will not
retain any copies of the same;
12.6.2 Repay all outstanding debts or loans due to the Employer or any
Associated Employer and the Employer is hereby authorised to deduct
from any of the Employee's wages a sum in repayment of all or any part
of such debts or loans; and
12.6.3 Execute written resignations from any and all positions held with
Employer and any Associated Employer.
12.7 For the avoidance of doubt, none of the provisions of this Agreement shall
relieve the Employee from the Employee's duty to mitigate any and all
damages resulting from the termination of Employment for whatever reason
and howsoever arising.
13. GARDEN LEAVE
13.1 The Employer may at any time notwithstanding any other provision of this
Agreement, direct that:
13.1.1 the Employee performs no duties; and/or
13.1.2 the Employee refrain from contacting any customer, clients,
advertisers, suppliers, agents, professional advisers, brokers or
employees of the Employer or any Associated Employer; and/or
13.1.3 the Employee does not enter all or any premises belonging to the
Employer or any Associated Employer.
13.2 Any suspension or exclusion of the Employee in accordance with 14.1 shall
be for a period of 9 months and during such period the Employee's Base
Salary and car allowance and non salary related benefits and no more, shall
continue to be paid or provided by the Employer. During any period of
notice, suspension or exclusion, the Employee must continue to comply
without exception with all the Employee's obligations under this Agreement
including Clause 2.3,
13.3 The Employer reserves the right to require the Employee to take any accrued
holiday entitlement during any period that the Employee is directed to
perform no duties and/or not to enter any premises of the Employer of
Associated Employer pursuant to this Clause 14.
14. MISCELLANEOUS
14.1 The Employee hereby warrants that, by virtue of entering into this
Agreement, the Employee is not and will not be in breach of any express or
implied terms of any contract, court order, any agreement with a third a
party which has created or could create any third party rights, or of any
other obligations legally binding upon him which are or could become
inconsistent with the Employee's obligations under this Agreement. The
Employee further agrees that the Employee will fully disclose to the
Employer at the Employee's earliest opportunity any such prior contract,
court order, agreements or other legal obligation as well as any claims
made or notices provided by a third party which allege any such agreement
or interest.
14.2 The Employee undertakes and agrees that after the termination of the
Employee's employment hereunder and prior to entering into any contractual
relationship with any other party to serve as an officer, director,
employee, partner, advisor, joint-venturer or in any other capacity with
any other business, undertaking, association, partnership, firm, enterprise
or venture, the Employee shall disclose to such other party the terms of
this Agreement.
14.3 There are no collective agreements applicable to the Employment.
14.4 The Employer shall be entitled at any time during the Employment or on its
termination to deduct from the Employee's wages or any other sums due to
the Employee from the Employer any monies due from the Employee to the
Employer in respect of any overpayment of any kind made to the Employee or
in respect of any debt or other sum due from the Employee.
15. DEFINITIONS AND INTERPRETATION
15.1 In this Agreement unless the context otherwise requires:
"ASSOCIATED EMPLOYER" means any company which is a holding company or a
subsidiary of the Employer or a subsidiary of the Employer's holding
company and "holding company" and "subsidiary" shall have the meanings
given by s.736 Companies ▇▇▇ ▇▇▇▇ as amended from time to time;
"INTELLECTUAL PROPERTY" includes without limitation all improvements,
inventions, know-how and discoveries, technology, letters patent,
copyrights, computer programs, utility models, design rights, trade marks,
service marks, documentation, processes, techniques or procedures in any
way related to the Employer's business which are developed, invented, or
written by the Employee alone or together with others, applications for
registration of any of the foregoing and the right to apply for them in any
part of the world, and including all derivative works during the course of
the Employment, or at any time using the Employer's confidential
information.
15.2 This Agreement, contains the entire understanding and agreement between the
parties with respect to the Employment and supersedes any and all
subsisting agreements arrangements representations and undertakings
(written or oral, express or implied) relating to the Employment which such
agreements, arrangements representations and undertakings shall be deemed
to have been terminated by mutual consent. Both parties hereby release and
forever discharge the other of and from all manner of actions, causes of
action, claims and demands whatsoever under or in respect of any such prior
agreements and representations.
15.3 Except as provided herein, no amendment or variation of any of the
provisions of this Agreement shall be valid unless made in writing and
signed by each of the parties. The Employer reserves the right to make
reasonable changes to any of the terms of this Agreement with reasonable
notice.
15.4 This Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the English law and
is subject to the exclusive jurisdiction of the English Courts.
15.5 Any reference in this Agreement to a person shall where the context permits
include a reference to a body corporate and to any unincorporated body of
persons.
15.6 Any word in this Agreement which denotes the singular shall where the
context permits include the plural and vice versa and any word in this
Agreement which denotes to the masculine gender shall where the context
permits include the feminine and/or the neuter genders and vice versa.
15.7 Any reference in this Agreement to a statutory provision shall be deemed to
include a reference to any statutory amendment modification or re-enactment
of it.
16. SEVERABILITY
16.1 In the event that any provision of this Agreement or part thereof shall be
deemed void, invalid, illegal or unenforceable by a court or other lawful
authority of competent jurisdiction, this Agreement shall continue in force
with respect to the enforceable provisions and all rights accrued under the
enforceable provisions shall survive any such declaration.
17. NOTICES
17.1 Any consent, approval, notice, request, or demand required or permitted to
be given under this Agreement by one party to the other shall be in writing
to be effective and
shall be deemed to have been sufficiently served by one party on the other
if it is delivered personally, sent via facsimile or is sent by registered
or recorded delivery prepaid post (air mail if overseas) addressed to the
Employers registered office for the lime being, or the Employee's last know
address or facsimile number.
17.2 Any consent, approval, notice, request or demand aforesaid if delivered
personally (for example, if left with an adult person at the above address
of the Employee and if left with the receptionist at the above address of
the Employer) or faxed shall be deemed to have been given on the date of
such delivery or facsimile. Any notice sent by post shall be deemed (in the
absence of evidence of earlier receipt) to be received two (2) days after
posting (six (6) if sent by air mail) and in proving the time such notice
was sent it shall be sufficient to show that the envelope containing it was
properly addressed, stamped and posted.
18. NON WAIVER
18.1 The parties acknowledge and agree that a failure by either party to enforce
any particular provision of this Agreement shall not be considered a waiver
of any of its rights and will not release the other party of any
responsibility for performance under this Agreement.
IN WITNESS whereof the parties have duly executed this Agreement as of the date
first above written.
Signed: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
Title: EUP, EMEA OPERATIONS
Signed: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Office
FOR AND ON BEHALF OR COREL UK LIMITED
APPENDIX A
CONFIDENTIALITY, POST TERMINATION UNDERTAKINGS, OWNERSHIP OF
PROPERTY, INVENTIONS, DISCOVERIES, INDUSTRIAL DESIGNS, ETC.
A1 CONFIDENTIALITY
A1.1 The Employee agrees to hold in strict confidence the business and affairs
of the Employer or any Associated Employer and any of their customers or
clients. The Employee shall not (other than in the proper performance of
the Employee's duties or with the prior written consent of the Employer or
unless ordered by a court of competent jurisdiction), at any time either
during the Employment or after its termination, directly or indirectly
disclose or communicate to any third party or use for the Employee's own
benefit or the benefit of any third party other than the Employer or any
Associated Employer any confidential information which may come to the
Employee's knowledge in the course of the Employment and the Employee shall
during the continuation of the Employment use best endeavours to prevent
the unauthorised publication or misuse of any confidential information,
subject to such restriction ceasing to apply in accordance with Clause A1.4
below.
A1.2 For the avoidance of doubt and without prejudice to the generality of
Clause A1.1 above the following is a non-exhaustive list of matters which
in relation to the Employer and Associated Employers are considered
confidential and must be treated as such by the Employee:
A1.2.1 Information disclosed in confidence to the Employer or any
Associated Employer by or on behalf of a customer or client or
prospective customer or client;
A1.2.2 Information respecting the identity of any customer or client of the
Employer or any Associated Employer;
A1.2.3 Information otherwise disclosed to the Employer on a confidential
basis by third parties; and
A1.2.4 Information otherwise identified to the Employee us confidential
information of the Employer or by its nature confidential including
without limitation any part of the Employer's computer systems,
software source code, system logic, systems, marketing plans, patents,
trade secrets, know-how, technical expertise, financial information,
product information, customer information, remuneration packages and
other information relating to the business of the Employer, whether
verbal or written, regardless of the form or medium, with respect to
the business of the Employer, as well as all proprietary and other
information of a confidential nature which is provided to the Employer
by third parties.
A1.3 The Employee's obligations of confidence described at Clause A1.1 above
include, without limiting the generality of the foregoing:
A1.3.1 Refraining from copying the Employer's or any Associated Employer's
confidential information without the Employer's prior written
permission or as required by the Employee's duties;
A1.3.2 Refraining from removing the Employer's or any Associated Employer's
confidential information from the Employer's premises without the
written permission of the Employer unless so required by the duties of
the Employee's role;
A1.3.3 Immediately returning upon request the confidential information of
the Employer or any Associated Employer's in the possession or control
of the Employee;
Al.3.4 Taking every reasonable step to prevent third parties from examining
and/or making copies of any documents or papers (whether in electronic
or hard copy form) prepared by the Employee or that come into the
Employee's possession or under the Employee's control by reason of the
Employment;
A1.3.5 Using the Employee's best efforts to follow all security policies of
the Employer or any Associated Employer's.
A1.4 The Employee's obligations of confidence described above will not apply to
information which:
A1.4.1 Enters the public domain other than by breach of obligations of
confidence owed by the Employee;
A1.4.2 Rightfully received by the Employee, outside of the course of the
Employment, from a third party without confidentiality limitations.
A1.5 The mingling of confidential Information with information that falls within
one or more of the exceptions above shall not impair the status of, or
obligations of confidence and non-use respecting, the confidential parts.
A1.6 The Employee agrees to promptly advise the Employer of any information
known to the Employee prior to the commencement of the Employment which
could be considered confidential information but which the Employee
considers to be excluded from the provisions of this Agreement. The
Employee further agrees to disclose any information which the Employee
believes is qualified by this paragraph before acting upon it.
A2 POST TERMINATION UNDERTAKINGS
A2.1 For the purposes of this Clause A2:
"THE BUSINESS" means the development and marketing of software owned or
marketed by the Employer or any Associated Employer (including without
limitation productivity software such as word-processing, presentation,
spreadsheet, process management and database applications as well as
graphics application, desktop publishing application
software and XML) or the provision of consulting, maintenance, support or
training services in connection with such software by the Employer or any
Associated Employer at the date of termination of the Employment and with
which the Employee has been concerned to a material extent in the 12 months
immediately preceding such termination; and
"ASSOCIATED EMPLOYER" means any Associated Employer in respect of which the
Executive has carried out material duties in the period of 12 months prior
to the date of termination of the Employment.
A2.2 The Employee undertakes that the Employee will not, either during the
Employment or for the period of 6 months after the termination of the
Employment, without the prior written consent of the Employer either alone
or jointly with or on behalf of any person directly or indirectly:
A2.2.1 solicit or entice away or endeavour to solicit or entice away from
the Employer or any Associated Employer any person who at the date of
termination of the Employment is employed or engaged by the Employer
or any Associated Employer and (i) is employed or engaged in a sales
and/or marketing capacity and with whom the Employee has had material
contact during the course of the Employment or (ii) is directly
managed by or reports to the Employee (in both cases whether or not
such person would commit a breach of contract by so doing);
A2.2.2 in connection with the carrying on of any business in competition
with the Business approach, canvass or solicit or cause to be
approached canvassed or solicited for orders in respect of any
services provided and/or any goods sold by the Employer or and
Associated Employer any third party who or which at the date of
termination of the Employment or at any time during the period of 12
months prior to that date is a customer or customer or client of the
Employer or any Associated Employer and with whom or which the
Employee shall have had dealings during the course of the Employment,
or who or which became a customer or client of the Employer or any
Associated Employer within six (6) months after the termination of the
Employment and in respect of whom or which the Employee shall have had
material involvement with the marketing effort in respect of such
customer or client during the course of the Employment;
A2.2.3 in connection with the carrying on of any business in competition
with the Business do business with any person who or which has at any
time during the period of 12 months immediately preceding the date of
termination of the Employment done business with the Employer or any
Associated Employer as and with whom or which the Employee shall have
had dealings during the course of the Employment or who has done
business with the Employer or Associated Employer within six (6)
months after the termination of the Employment and in respect of whom
or which the Employee shall have had material involvement with the
marketing effort in respect of such person during the course of the
Employment.
A2.3 The Employee covenants with the Employer that the Employee will not for the
period of 6 months after the termination of the Employment without the
prior written consent of the Employer either alone or jointly with or on
behalf of any person directly or indirectly carry on or set up or be
employed or engaged by or otherwise assist in or be interested in any
capacity (save as a shareholder of not more than two (2) percent in
aggregate of any class of shares, debentures or other securities of any
company which are quoted on or dealt in any recognised investment exchange)
in any business anywhere within the EEC which is in competition with the
Business.
A2.4 The Employee agrees to notify the Employer immediately of any offer of
employment or engagement or arrangement made with or to the Employee which
may give rise to a breach of one or more of the covenants contained in
Clauses A2.2 and A2.3 ("a notifiable offer") and further undertakes that on
receipt of a notifiable offer the Employee will immediately inform the
third party or parties responsible for the notifiable offer of the
existence of those covenants.
A2.5 The periods during which Clauses A2.2 and A2.3 are expressed to operate
shall each be reduced by such period as the Employee shall have complied
with a direction to perform no duties and/or not to enter all or any
premises of the Employer or any Associated Employer pursuant to Clause 14.
A2.6 The undertakings contained in Clauses A2.2 and A2.3 are intended to be
separate and severable and enforceable as such.
A3 OWNERSHIP OF PROPERTY
A3.1 The Employee agrees that during the term of the Employment and at any time
after the termination of the Employment, any and all equipment devices or
other property provided to the Employee by the Employer shall remain the
property of the Employer. The foregoing shall include all property (whether
in electronic or hard copy form) including without limitation computers,
peripherals, software, cellular phones and any other equipment.
A3.2 On request by the Employer, and in any event upon termination of the
Employment howsoever arising and for whatever reason, the Employee shall
immediately return to the Employer any and all of the foregoing property
and shall return to the Employer any other property which has been leased
or rented by the Employer for use by the Employee.
A3.3 The Employee hereby agrees that in the event that the Employee does not
return any and all of the foregoing property, the Employee will pay to the
Employer a sum equal to the fair market value of the property as reasonably
determined by the Employer. The Employee authorises the Employer in such
cases to set off and/or deduct such amount from the Employee's final
payment of wages or any other sums due to the Employee from the Employer.
In the event that such amount exceeds the Employees final payment of wages
and other sums due to the Employee, the Employee agrees to make a payment
to the Employer of an amount equal to the outstanding excess.
A4 INVENTIONS, DISCOVERIES, INDUSTRIAL DESIGNS, ETC.
A4.1 If at any time during the Employment the Employee makes or discovers or
participates in the making or discovery of any Intellectual Property
including (without limitation):
A4.1.1 Conceiving or making any invention or discovery, whether patentable
or not;
A4.1.2 Becoming the author of any design capable of being protected as an
industrial design, design patent or other design protection;
A4.1.3 Becoming the author of any work in which copyright may exist;
A4.1.4 Developing any confidential information which may be capable or
being protected as a trade secret;
which relates to or is capable of being used in the business of the
Employer or any Associated Employer, the Employee shall (subject to the
relevant provisions of the Patents ▇▇▇ ▇▇▇▇, the Registered Designs ▇▇▇
▇▇▇▇ and the Copyright Designs and Patents Act 1988) immediately disclose
and deliver up to the Employer full details, information, documents and
other things (in whatever form or media) related thereto and at the request
and expense of the Employer shall do all things which may be necessary or
desirable for obtaining appropriate forms of protection In such parts of
the world as may be specified by the Employer and for vesting all rights in
such Intellectual Property in the Employer, any Associated Employer or a
company nominated by the Employer.
A4.2 The Employee hereby irrevocably appoints the Employer to be the Employee's
agent in the Employee's name and on the Employee's behalf to sign any
instrument, execute or do any act and generally to use the Employee's name
for the purpose of giving to the Employer or its nominee the full benefit
of the provisions of this Clause A4 and in favour of any third party a
certificate in writing signed by any director or the secretary of the
Employer that any instrument or act falls within the authority conferred by
this Clause A4.2 shall be conclusive evidence that such is the case.
A4.3 The Employee hereby waives all of the Employee's moral rights (as defined
in the Copyright Designs and Patents Act 1988) in respect of any acts of
the Employer or acts of third parties done with the Employer's authority in
relation to any Intellectual Property which is the property of the Employer
by virtue of Clause A4.1.
A4.4 The Employee acknowledges that from time to time, the Employer uses the
image, likeliness, voice or other representation of its employees in
connection with the production of corporate reports, advertising and
promotional materials and training videos. The Employee hereby agrees that
if, during the course of the Employment, the Employee participates in such
productions, the Employer may use the Employee's image, likeness, voice or
other representation in perpetuity, in all media and in all territories for
the purposes described above without further compensation to the Employee.
A4.5 All rights and obligations under this Clause A4 in respect of Intellectual
Property made or discovered by the Employee during the Employment shall
continue in full force and effect after the termination of the Employment
and shall be binding upon the Employee's personal representatives.
A4.6 The Employee acknowledges that any and all Intellectual Property created by
the Employee during the course of the Employment shall vest in and be owned
by and constitute the property of the Employer and to the extent that they
do not automatically so vest in part consideration of the monies received
by the Employee pursuant to this Agreement the Employee hereby assigns and
transfers with full title guarantee such Intellectual Property.
A5 CHANGE OF CONTROL
"CHANGE OF CONTROL" means the occurrence of any of the following events:
A5.1.1 the Employer is merged, or consolidated or reorganized into or with
another corporation or other legal person in any transaction or series
of related transactions (other than a transaction to which only the
Employer and one or more of its subsidiaries are parties) and as a
result of such merger, consolidation or reorganization, less than 51 %
of the combined voting power of the outstanding voting securities of
the surviving entity or person immediately after such transaction or
series of related transactions, are held in the aggregate by persons
or entities who were holders of voting securities of the Employer
immediately prior to such transaction;
A5.1.2 the Employer sells all or substantially all of its assets to any
other corporation or other legal person in any sale or series of
related sales (other than a transaction to which only the Employer and
one or more of its subsidiaries are parties);
A5.1.3 the Employer's Board of Directors approves the distribution to the
Employer's shareholders of all or substantially all of the Employer's
net assets, or the Employer's Board of Directors, shareholders or a
court of
competent jurisdiction approves the dissolution or liquidation of the
Employer;
or
A.5.1.4 any other transactions or series of related transactions occur
which have substantially the same effect as the transactions specified
in any of the preceding clauses (other than transactions to which only
the Employer and one or more of its subsidiaries are parties).
Signed: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
Title: EVP EMEA OPERATIONS
Signed: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
FOR AND ON BEHALF OF COREL CORPORATION
(COREL LOGO)
Waiver as Appendix to Employment Contract dated 1st January 2003
I, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, hereby confirm that upon signature of this employment
contract, I cede any right to ▇▇▇ Corel Corporation or any of its subsidiaries
regarding reasons for unfair dismissal when notice of termination is paid as
stands in Article 12 of the attached employment contract.
Signed: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Date: 23/04/03