Employment Agreement - Harris Computer Systems Corp. and Robert L. Carberry
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of the 5th day of March, 1996 by and between HARRIS COMPUTER SYSTEMS
CORPORATION, a Florida corporation ("Company"), and ROBERT L. CARBERRY
("Employee").
WHEREAS, the Company, through its Board of Directors, desires to
retain the services of Employee, and Employee desires to be retained by the
Company, on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee
hereby accepts employment, as President, Chief Executive Officer and Chairman
of the Board of the Company upon the terms of and subject to this Agreement.
2. TERM. The term ("Term") of this Agreement shall commence and
this Agreement shall become effective on the 12th day of April 1996 (the
"Effective Date") and shall continue until otherwise terminated by either party
at any time in accordance with the terms hereof.
3. DUTIES. During his employment hereunder, Employee initially
will be appointed President and General Manager of the Trusted Systems Division
of Harris Computer Systems Corporation, reporting to Corky Siegel, until
closing ("Closing") under the Purchase and Sale Agreement that is currently
under negotiations between the Company and Concurrent Computer Corporation
providing for the sale to Concurrent of the assets of the Company's real-time
computer business. The anticipated date of Closing is June, 1996. After the
Closing, Employee will serve as the President, Chief Executive Officer and
Chairman of the Board of the Company and the Company will take such actions as
necessary to cause his nomination as a member of the Board of Directors of the
Company. Employee shall have general and active charge of the business and
affairs of the Company and, in such capacity, shall have responsibility for the
day-to-day operations of the Company, subject to the authority and control of
the Board of Directors of the Company.
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Employee shall report directly to the Board of Directors of the Company.
Throughout the term of employment hereunder, the Employee shall devote his full
time and undivided attention during normal business hours to the business and
affairs of the Company, as appropriate to his duties and responsibilities
hereunder, except for reasonable vacations and illness or other disability, but
nothing in this Agreement shall preclude the Employee from devoting reasonable
periods required for serving as a director or member of any advisory committee
of not more than two (at any time) "for profit" organizations involving no
conflict of interest with the interests of the Company (subject to approval by
the Board of Directors, which approval shall not be unreasonably withheld), or
from engaging in charitable and community activities, or from managing his
personal investments, provided such activities do not materially interfere with
the performance of his duties and responsibilities under this Agreement.
4. COMPENSATION.
a. Salary: During his employment hereunder, Employee
shall be paid a as follows, payable in equal installments not less than
monthly: two hundred thousand dollars ($200,000.00) per annum for the first
twelve month period; two hundred twenty-five thousand dollars ($225,000.00) per
annum for the second twelve month period; two hundred fifty thousand dollars
($250,000) per annum for the third twelve month period. Thereafter, the
Employee's salary shall be reviewed at least annually by the Board of Directors
or any Committee of the Board delegated the authority to review executive
compensation.
b. Stock Option/Bonus: In addition to salary, Employee
shall be entitled to participate in the Company's Stock Option Plan (the "Stock
Option Plan") and Employee shall be initially granted, as of the date of this
Agreement (such grant subject to Employee's actually joining the Company as an
employee), an option to purchase 339,000 post-March 1996 three-for-one split
shares of common stock of the Company ("Common Stock") (such number to be
subject to further adjustment as provided in the Stock Option Plan). The per
share exercise price of the option shall be the fair market value of the
Company's Common Stock as of the date of this Agreement (which is $10.67 per
share), and the option shall vest in three equal annual installments over the
three-year period beginning on the first anniversary of the Effective Date;
upon a "Change of Control" (as defined below), the option shall become
immediately fully vested and exercisable in full. The Employee shall be
additionally granted, as of the Effective Date, long-term incentive
compensation as described on the attached Schedule A, with vesting based on the
achievement of Company performance objectives. The objectives for each year of
such long-term incentive compensation plan, and other terms and conditions of
the long-term incentive compensation plan, shall be
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established by the Board of Directors or a committee thereof. Further,
Employee will be provided with an annual bonus opportunity representing 50% of
Employee's annual salary as set forth in Paragraph 4.a above, (initially,
$100,000.00) (hereafter the "Executive Bonus Plan"), the actual amount to be
paid depending upon the degree of achievement of various objectives. The
objectives for each year and other terms and conditions of the Executive Bonus
Plan shall be established by the Board of Directors or a committee thereof and
shall be reasonably consistent with the business plan of the Company for such
year, or portion thereof, established in advance.
c. Insurance: During his employment hereunder, Employee
shall be entitled to participate in such health, life, disability and other
insurance programs, if any, that the Company may offer to other key executive
employees of the Company from time to time.
d. Other Benefits: During his employment hereunder,
Employee shall be entitled to such other benefits, if any, that the Company may
offer to other key executive employees of the Company from time to time.
e. Vacation: Employee shall be entitled to four weeks
vacation leave (in addition to holidays) in each calendar year during the Term,
or such additional amount as may be set forth in the vacation policy that the
Company shall establish from time to time.
f. Expense Reimbursement: Employee shall, upon
submission of appropriate supporting documentation, be entitled to
reimbursement of reasonable out-of-pocket expenses incurred in the performance
of his duties hereunder in accordance with policies established by the Company.
Such expenses shall include, without limitation, reasonable entertainment
expenses, gasoline and toll expenses and cellular phone use charges, if such
charges are directly related to the business of the Company.
5. GROUNDS FOR TERMINATION. The Board of Directors of the
Company may terminate this Agreement for Cause. As used herein, "Cause" shall
mean any of the following: (a) the Employee has committed a willful serious act
against the Company intended to enrich himself at the expense of the Company,
such as embezzlement, or has been convicted of a felony involving moral
turpitude; or (b) Employee has (i) willfully and grossly neglected his duties
hereunder, or (ii) intentionally failed to observe specific directives or
policies of the Board of Directors, which directives or policies were
consistent with his positions, duties and responsibilities hereunder, and which
failure had, or continuing failure will have, a material adverse effect on the
Company. Prior to any such termination, Employee shall be given written notice
by the Board of Directors that the Company intends to terminate his employment
for Cause under this
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Section 5, which written notice shall specify the particular acts or omissions
on the basis of which the Company intends to so terminate Employee's
employment, and Employee (with his counsel, if he so chooses) shall be given
the opportunity, within 15 days of his receipt of such notice, to have a
meeting with the Board of Directors to discuss such acts or omissions and be
given reasonable time to remedy the situation. In the event of such
termination, the Employee shall be promptly furnished written specification of
the basis therefor in reasonable detail.
6. TERMINATION BY EMPLOYEE. Employee may terminate this
Agreement at any time with Good Reason. "Good Reason" shall exist if:
a. the Company demotes or otherwise elects or appoints
the Employee to lesser offices than set forth in Section 3, or fails to elect
or appoint him to such positions;
b. the Company causes a material change in the nature or
scope of the authorities, powers, functions, duties or responsibilities
attached to the Employee's positions as described in Section 3;
c. at any time the Employee is required, without his
written consent, to relocate his office more than seventy-five miles from the
location of the Company's current corporate headquarters;
d. the Company decreases the Employee's compensation
below the levels provided for by the terms of Section 4 (taking into account
increases made from time to time in accordance with Section 4);
e. the Company materially reduces the Employee's
benefits under any employee benefit plan, program or arrangement of the Company
(other than a change that affects all employees similarly situated) from the
level in effect upon the Employee's commencement or participation;
f. the Company commits any other material breach of the
provisions of this Agreement (except those set forth in Paragraph 4.a.) and
Employee provides at least 15 days' prior written notice to at least two
members of the Company's Board of Directors of the existence of such breach and
his intention to terminate this Agreement (no such termination shall be
effective if such breach is cured during such period);
g. the Company fails to comply with the provisions of
Paragraph 4.a. for an uninterrupted 10 day period; or
h. the Closing fails to occur on or before September 30,
1996; provided, however, that if the Closing has not occurred by September 30,
1996 but an officer of the Company delivers a notice to Employee stating that
there are no unresolved material issues between the Company and Concurrent
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Computer Corporation and that the Closing is expected to occur no later than
November 15, 1996, then Good Reason shall not exist unless the Closing shall
not have occurred by such date.
7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION.
a. In the event Employee's employment with the Company
(including its subsidiaries) is terminated by the Company for Cause as provided
in Paragraph 5 then, on or before Employee's last day of employment with the
Company, the provisions of this Paragraph 7.a shall apply. These same
provisions shall apply if the Employee terminates his employment other than for
Good Reason in accordance with the provisions of Paragraph 6 hereof.
i. Compensation: The Company shall pay in a
lump sum to Employee such amount of compensation due Employee for services
rendered to the Company, as well as compensation for unused vacation time, as
has accrued but remains unpaid. Any and all other rights to compensation of
any kind granted to Employee under this Agreement shall terminate as of the
date of termination, except as may be otherwise required by statute.
ii. Noncompetition/Nonsolicitation Period: The
provisions of Paragraphs 13 and 14 shall continue to apply with respect to
Employee for a period of one year following the date of termination.
b. In the event Employee's employment with the Company
(including its subsidiaries) is terminated by the Company for any reason other
than for Cause as provided in Paragraph 5 and other than as a consequence of
Employee's death, disability, or normal retirement under the Company's
retirement plans and practices, then the following provisions apply. These
same provisions shall apply if Employee terminates his employment with Good
Reason in accordance with the provisions of Paragraph 6 hereof.
i. Salary and Bonus Payments: On or before
Employee's last day of employment with the Company, the Company shall promptly
pay in a lump sum to Employee as compensation for services rendered to the
Company a cash amount equal to twice the amount of Employee's annual base
salary and twice the target bonus under the Executive Bonus Plan as in effect
immediately prior to his date of termination. At the election of the Company,
the cash amount referred to in this subparagraph 7.b.i may be paid to Employee
in periodic installments in accordance with the normal salary payment
procedures of the Company.
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ii. Vesting of Options and Rights:
Notwithstanding the vesting period provided for in the Stock Option Plan and
related stock option agreements between the Company and Employee for stock
options ("options") and stock appreciation rights ("rights") granted Employee
by the Company, all options and stock appreciation rights that are exercisable
at the date of termination of employment or within one year thereafter shall be
exercisable upon termination. In addition, Employee will have the right to
exercise such options and rights for the shorter of (a) one year following his
termination of employment or (b) with respect to each option, the remainder of
the period of exercisability under the terms of the appropriate documents that
grant such options.
iii. Benefit Plan Coverage: The Company shall
maintain in full force and effect for Employee and his dependents for two years
after the date of termination, all life, health, accident, and disability
benefit plans and other similar employee benefit plans, programs and
arrangements in which Employee or his dependents were entitled to participate
immediately prior to the date of termination, in such amounts as were in effect
immediately prior to the date of termination, provided that such continued
participation is possible under the general terms and provisions of such
benefit plans, programs and arrangements. In the event that participation in
any benefit plan, program or arrangement described above is barred, or any such
benefit plan, program or arrangement is discontinued or the benefits thereunder
materially reduced, the Company shall arrange to provide Employee and his
dependents for two years after the date of termination with benefits
substantially similar to those that they were entitled to receive under such
benefit plans, programs and arrangements immediately prior to the date of
termination. If immediately prior to the date of termination the Company
provided Employee with any club memberships, Employee will be entitled to
continue such memberships at his sole expense. Notwithstanding any time period
for continued benefits stated in this subparagraph 7.b.iii, all benefits in
this subparagraph 7.b.iii will terminate on the date that Employee becomes an
employee of another employer and eligible to participate in the employee
benefit plans of such other employer. To the extent that Employee was required
to contribute amounts for the benefits described in this subparagraph 7.b.iii
prior to his termination, he shall continue to contribute such amounts for such
time as these benefits continue in effect after termination.
iv. Savings and Other Plans: Except as otherwise
more specifically provided herein or under the terms of the respective plans
relating to termination of employment, Employee's active participation in any
applicable savings, retirement, profit sharing or supplemental employee
retirement plans or any deferred compensation or similar plan of the Company or
any of its subsidiaries shall continue only
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through the last day of his employment. All other provisions, including any
distribution and/or vested rights under such plans, shall be governed by the
terms of those respective plans.
v. Noncompetition/Nonsolicitation Period: The
provisions of Paragraph 13 and 14 shall continue, beyond the time periods set
forth in such paragraphs, to apply with respect to employee for the shorter of
(x) twenty-four (24) months following the date of termination or (y) until such
time as the Company has failed to comply with the provisions of subparagraph
7.b.i for an uninterrupted 10-day period and such failure is not cured within
15 days after written notice of such failure is delivered to at least two
non-employee directors of the Company.
c. The provisions of this Paragraph 7.b shall apply if
Employee's employment is terminated prior to a Change of Control or more than
one year after the occurrence of a Change of Control (as defined in Paragraph
8.c). From the occurrence of any Change of Control until the first anniversary
of such Change of Control, the provisions of Paragraph 8 shall apply in place
of this Paragraph 7.b; provided, further, that in the event after a change of
Control, Company terminates Employee for Cause or Employee terminates his
employment without Good Reason, then the provisions of Paragraph 8 hereof shall
not apply and the provisions of Paragraph 7.a. shall apply. Termination upon
death, disability and retirement are covered by Paragraphs 9, 10 and 11,
respectively.
8. PAYMENT AND OTHER PROVISIONS AFTER CHANGE OF CONTROL.
a. Salary, Performance Award and Bonus Payments: In the
event Employee's employment with the Company is terminated within one year
following the occurrence of a Change of Control (other than as a consequence of
his death or disability, or of his normal retirement under the Company's
retirement plans and practices) either (x) by the Company for any reason other
than for Cause in accordance with Paragraph 5, or (y) by Employee for Good
Reason in accordance with the provisions of Paragraph 6 hereof, then Employee
shall be entitled to receive from the Company, the following:
i. Base Salary: Employee's annual base salary
as in effect at the date of termination, multiplied by three, shall be paid on
the date of termination;
ii. Target Bonus: The amount of the Employee's
target bonus under the Executive Bonus Plan for the fiscal year in which the
date of termination occurs, multiplied by three, shall be paid on the date of
termination; and
iii. Other Benefits: All benefits under
Paragraphs 7.b.ii, 7.b.iii and 7.b.iv shall be extended to Employee as
described in such paragraphs, except that notwithstanding the vesting period
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provided for in the Stock Option Plan and any related stock option agreements
between the Company and Employee for stock options ("options") and stock
appreciation rights ("rights") granted Employee by the Company, all options and
rights shall be fully vested and exercisable upon a Change of Control, and upon
termination of employment the period for exercise of options and rights
described in the last sentence of Paragraph 7.b.ii shall be the shorter of (a)
three years following his termination of employment or (b) with respect to each
option, the remainder of the period of exercisability under the terms of the
appropriate documents that grant such options.
b. Noncompetition/Nonsolicitation Period: In the event
of a termination under Paragraph 8.a within one year after a Change of Control
the provisions of Paragraphs 13 and 14 shall be in effect as stated in
Paragraph 7.b.v
c. For purposes of this Agreement, the term "Change of
Control" shall mean:
i. The acquisition, other than from the Company,
by any individual, entity or group (within the meaning of Rule 13d-3
promulgated under the Exchange Act or any successor provision)(any of the
foregoing described in this Paragraph 8.c.i hereafter a "Person") of 50% or
more of either (a) the then outstanding shares of Capital Stock of the Company
(the "Outstanding Capital Stock") or (b) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Voting Securities"), provided, however, that any
acquisition by (x) the Company or any of its subsidiaries, or any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
of its subsidiaries or (y) any Person that is eligible, pursuant to Rule
13d-1(b) under the Exchange Act, to file a statement on Schedule 13G with
respect to its beneficial ownership of Voting Securities, whether or not such
Person shall have filed a statement on Schedule 13G, unless such Person shall
have filed a statement on Schedule 13D with respect to beneficial ownership of
50% or more of the Voting Securities or (z) any corporation with respect to
which, following such acquisition, more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Capital Stock and Voting Securities immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior to such
acquisition, of the Outstanding Capital Stock and Voting Securities, as the
case may be, shall not constitute a Change of Control; or
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ii. Individuals who, as of the Effective Date,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board, provided that any individual becoming a
director subsequent to the date hereof whose election or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A, or any successor section, promulgated under the
Exchange Act); or
iii. Approval by the shareholders of the Company
of a reorganization, merger or consolidation (a "Business Combination"), in
each case, with respect to which all or substantially all holders of the
Outstanding Capital Stock and Voting Securities immediately prior to such
Business Combination do not, following such Business Combination, beneficially
own, directly or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from the Business
Combination; or
iv. (a) a complete liquidation or dissolution of
the Company or (b) a sale or other disposition of all or substantially all of
the assets of the Company other than to a corporation with respect to which,
following such sale or disposition, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Capital Stock and Voting Securities
immediately prior to such sale or disposition in substantially the same
proportion as their ownership of the Outstanding Capital Stock and Voting
Securities, as the case may be, immediately prior to such sale or disposition.
Notwithstanding the foregoing, the currently contemplated transaction
with Concurrent Computer Corporation (including any modifications to such
transaction) shall not constitute a Change of Control.
9. TERMINATION BY REASON OF DEATH. If Employee shall die while
employed by the Company both prior to termination of employment and during the
effective term of this Agreement, all Employee's rights under this Agreement
shall terminate with the payment of such amounts of annual base salary as have
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accrued but remain unpaid and a prorated amount of targeted bonus under the
Executive Bonus Plan through the month in which his death occurs, plus six
additional months of the fixed salary and targeted bonus. All benefits under
Paragraphs 7.b.ii and 7.b.iv shall be extended to Employee's estate as
described in such paragraphs. In addition, Employee's eligible dependents
shall receive continued benefit plan coverage under Paragraph 7.b.iii for six
months from the date of Employee's death.
10. TERMINATION BY DISABILITY. Employee's employment hereunder
may be terminated by the Company for disability. In such event, all Employee's
rights under this Agreement shall terminate with the payment of such amounts of
annual base salary as have accrued but remain unpaid as of the thirtieth (30th)
day after such notice is given except that all benefits under Paragraphs
7.b.ii, 7.b.iii and 7.b.iv shall be extended to Employee as described in such
paragraphs, provided, however, that, with respect to Paragraph 7.b.iii, the
period for continued benefit plan coverage shall be limited to six months from
the date of termination. In addition, the noncompetition and nonsolicitation
provisions of Paragraphs 13 and 14 shall continue to apply for a period of six
months from the date of termination for disability. For purposes of this
Agreement, "disability" is defined to mean that, as a result of Employee's
incapacity due to physical or mental illness:
a. Employee shall have been absent from his duties as an
officer of the Company on a substantially full-time basis for six (6)
consecutive months: and
b. Within thirty (30) days after the Company notifies
Employee in writing that it intends to replace him, Employee shall not have
returned to the performance of his duties as an officer for the Company on a
full-time basis. Such notice may be given by the Company at any time after
Employee has been absent for a total of four consecutive months.
11. RETIREMENT. Employee shall be entitled to participate in the
Company's Retirement Savings Plan and any other retirement plan hereafter made
available to senior executive officers of the Company in accordance with the
provisions thereof as in effect from time to time.
12. INDEMNIFICATION. If litigation shall be brought to enforce or
interpret any provision contained herein, the non-prevailing party shall
indemnify the prevailing party for reasonable attorney's fees (including those
for negotiations, trial and appeals) and disbursements incurred by the
prevailing party in such litigation, and hereby agrees to pay prejudgment
interest on any money judgment obtained by the
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prevailing party calculated at the generally prevailing Nations Bank of
Florida, N.A. base rate of interest charged to its commercial customers in
effect from time to time from the date that payment(s) to him should have been
made under this Agreement.
13. NONCOMPETITION.
a. At all times during Employee's employment hereunder,
and for such additional periods as may otherwise be set forth in this Agreement
in reference to this Paragraph 13, Employee shall not, directly or indirectly,
engage in any business, enterprise or employment, whether as owner, operator,
shareholder, director, partner, creditor, consultant, agent or any capacity
whatsoever that manufactures products designed to compete directly with
products of the Company or markets such products anywhere in the world where
the Company (i) is engaged in business or (ii) has evidenced an intention of
engaging in business. Employee acknowledges that he has read the foregoing and
agrees that the nature of the geographical restrictions are reasonable given
the international nature of the Company's business. In the event that these
geographical or temporal restrictions are judicially determined to be
unreasonable, the parties agree that these restrictions shall be judicially
reformed to the maximum restrictions which are reasonable.
b. Notwithstanding the provisions of the preceding
Subparagraph, the Employee may accept employment with a company that would be
deemed to be a competitor of the Company as described in the previous
subparagraph ("Competitor"), so long as (i) the Competitor has had annual
revenues of at least $1 billion in each of the prior two fiscal years, (ii) the
Competitor's revenues for products and maintenance in direct competition with
the Company do not exceed 50% of its total revenues, and (iii) the Employee's
responsibilities are solely for divisions or subsidiaries of the Competitor
that do not compete with the Company.
14. NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. At all times
during the Employee's employment hereunder, and for such additional periods as
may otherwise be set forth in this Agreement, in reference to this Paragraph
14, the Employee shall not, directly or indirectly, for himself or for any
other person, firm, corporation, partnership, association or other entity (a)
attempt to employ, employ or enter into any contractual arrangement with any
employee or former employee of the Company, its affiliates, subsidiaries or
predecessors in interest, unless such employee or former employee has not been
employed by the Company, its affiliates, subsidiaries or predecessors in
interest, during the six months prior to the
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Employee's attempt to employ him, or (b) call on or solicit any of the actual
or targeted prospective customers of the Company or its affiliates,
subsidiaries or predecessors in interest with respect to any matters related to
or competitive with the business of the Company.
15. CONFIDENTIALITY.
a. Nondisclosure: The Employee acknowledges and agrees
that the Confidential Information (as defined below) is a valuable, special and
unique asset of the Company's business. Accordingly, except in connection with
the performance of his duties hereunder, the Employee shall not at any time
during or subsequent to the term of his employment hereunder disclose, directly
or indirectly, to any person, firm, corporation, partnership, association or
other entity any proprietary or confidential information relating to the
Company or any information concerning the Company's financial condition or
prospects, the Company's customers, the design, development, manufacture,
marketing or sale of the Company's products or the Company's methods of
operating its business (collectively, "Confidential Information").
Confidential Information shall not include information which, at the time of
disclosure, is known or available to the general public by publication or
otherwise through no act or failure to act on the part of Employee.
b. Return of Confidential Information: Upon termination
of Employee's employment, for whatever reason and whether voluntary or
involuntary, or at any time at the request of the Company, Employee shall
promptly return all Confidential Information in the possession or under the
control of Employee to the Company and shall not retain any copies or other
reproductions or extracts thereof. Employee shall at any time at the request
of the Company destroy or have destroyed all memoranda, notes, reports, and
documents, whether in "hard copy" form or as stored on magnetic or other media,
and all copies and other reproductions and extracts thereof, prepared by
Employee and shall provide the Company with a certificate that the foregoing
materials have in fact been returned or destroyed.
c. Books and Records: All books, records and accounts
whether prepared by Employee or otherwise coming into Employee's possession,
shall be the exclusive property of the Company and shall be returned
immediately to the Company upon termination of Employee's employment hereunder
or upon the Company's request at any time.
16. INJUNCTION/SPECIFIC PERFORMANCE SETOFF. Employee acknowledges
that a breach of any of the provisions of Paragraphs 13, 14, or 15 hereof would
result in immediate and irreparable injury to the
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Company which cannot be adequately or reasonably compensated at law.
Therefore, Employee agrees that the Company shall be entitled, if any such
breach shall occur or be threatened or attempted, to a decree of specific
performance and to a temporary and permanent injunction, enjoining and
restraining such breach by Employee or his agents, either directly or
indirectly, and that such right to injunction shall be cumulative to whatever
other remedies for actual damages to which the Company is entitled. Employee
further agrees that the Company may set off against or recoup from any amounts
due under this Agreement to the extent of any losses incurred by the Company as
a result of any breach by Employee of the provisions of Paragraphs 13, 14 or 15
hereof.
17. SEVERABILITY. Any provision in this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
18. SUCCESSORS. This Agreement shall be binding upon Employee and
inure to the benefit of the Company and any permitted successor of the Company.
Neither this Agreement nor any rights arising hereunder may be assigned or
pledged by Employee or anyone claiming through Employee; or by the Company,
except to any corporation which is the successor in interest to the Company by
reason of a merger, consolidation or sale of substantially all of the assets of
the Company. The foregoing sentence shall not be deemed to have any effect
upon the rights of Employee upon a Change of Control.
19. CONTROLLING LAW. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of
Florida.
20. NOTICES. Any notice required or permitted to be given
hereunder shall be written and sent by registered or certified mail,
telecommunicated or hand delivered at the address set forth herein or to any
other address of which notice is given:
TO THE COMPANY: HARRIS COMPUTER SYSTEMS CORPORATION
2101 WEST CYPRESS CREEK ROAD
FORT LAUDERDALE, FLORIDA 33309
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TO THE EMPLOYEE: ROBERT L. CARBERRY
6494 N.W. 32ND WAY
BOCA RATON, FL 33496
21. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto on the subject matter hereof and may not
be modified without the written agreement of both parties hereto.
22. WAIVER. A waiver by any party of any of the terms and
conditions hereof shall not be construed as a general waiver by such party.
23. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and both of which together shall
constitute a single agreement.
24. INTERPRETATION. In the event of a conflict between the
provisions of this Agreement and any other agreement or document defining
rights and duties of Employee or the Company upon Employee's termination, the
rights and duties set forth in this Agreement shall control.
25. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 7.b. provides that
certain payments and other benefits shall be received by Employee upon the
termination of Employee by the Company other than for Cause and states that
these same provisions shall apply if Employee terminates his employment in
accordance with the provisions of Paragraph 6 hereof. It is the intention of
this Agreement that if the Company terminates Employee other than for Cause
(and other than as a consequence of Employee's death, disability or normal
retirement) or if Employee terminates his employment in accordance with the
provisions of Paragraph 6 hereof, then the payments and other benefits set
forth in Paragraph 7.b. shall constitute the sole and exclusive remedies of
Employee. This Paragraph 25 shall have no effect upon the provisions of
Paragraph 8 of this Agreement.
26. OTHER BOARD APPOINTMENTS. The Company currently intends to
increase the size of the Board by two directors. Nominations for election for
these two additional directors shall be made based upon recommendations made by
Employee, subject to approval by the Company's Board of Directors.
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<PAGE> 15
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
HARRIS COMPUTER SYSTEMS CORP. EMPLOYEE
-------------------------------------- -------------------------------------
E. Courtney Siegel Robert L. Carberry
Chairman, President and
Chief Executive Officer
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<PAGE> 16
SCHEDULE A
LONG TERM INCENTIVE PLAN ("LTIP")
The LTIP will initially be a three year plan, consisting of a stock
option granted in each of such first three years under the LTIP (each annual
option is referred to herein as a "LTIP Option"). Each LTIP Option shall be
granted on an amount of shares of Company Common Stock equal to 150% of the
Employee's base salary divided by the "Exercise Price" for that LTIP Option.
The "Exercise Price" shall be the fair market value of the Company's Common
Stock on the date of grant of each LTIP Option. Each LTIP Option shall become
exercisable on the third anniversary of that LTIP Option (the anniversary date
of each LTIP Option shall be determined by the Board). Each LTIP Option's
vesting shall also be further subject to achieving objectives that are to be
set by the Board.
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