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EXHIBIT 99A
EMPLOYMENT AGREEMENT
FORM 10-Q
PAGE 24
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CONTRACT OF EMPLOYMENT
The undersigned:
1. HARBINGER CORPORATION, established in Atlanta, Georgia, USA (hereafter
known as the "Company")
and
2. MR. WILLEM VAN NIEUWENHUYZEN residing in Zeist, The Netherlands
(hereafter known as "Mr. van Nieuwenhuyzen" or the "Employee")
Declare Agreement as to the following:
1. Function
a. The Company employs Mr. van Nieuwenhuyzen in the function of
General Manager, Europe and Africa. He reports to the Chief
Executive Officer, Harbinger Corporation.
b. Mr. van Nieuwenhuyzen binds himself to undertaking the
responsibilities reasonably demanded of him by the Company in
the function of General Manager, Europe and Africa. Mr. van
Nieuwenhuyzen places his entire energies at the disposal of
the Company.
c. Mr. van Nieuwenhuyzen will not undertake any supplemental
employment, paid or unpaid, without written permission from
the Company.
d. Mr. van Nieuwenhuyzen agrees to perform to the best of his
abilities all duties which may reasonably be assigned to him
by or on behalf of the Company and which are connected with
the Company's business, and to follow the directions which
shall be given by or on behalf of the Company.
e. Mr. van Nieuwenhuyzen's principal place of work is The
Netherlands, unless changed by the Company. Mr. van
Nieuwenhuyzen will travel throughout Europe and Africa.
2. The Term of the Contract
This Agreement has been entered into for an indefinite period of time,
effective August 1, 1997 and starting October 1, 1997.
3. Salary, Bonus and Stock Option
Mr. van Nieuwenhuyzen's salary is Gldrs 30,770 per month. The salary
will be paid in arrears by the Company prior to the end of each month
into a bank account to be specified by Mr. van Nieuwenhuyzen.
Moreover, Mr. van Nieuwenhuyzen is entitled to the annual holiday
supplement, which is established at 8.33% of gross salary (Gldrs.
30,700) and will be paid annually in the month of July, adjusted
proportionately for actual length of service during a given year.
Total annual salary is 12 times monthly salary plus annual holiday
supplement, and excluding bonuses, commissions, incentives and other
allowances.
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The Company shall deduct and pay all the obligatory wage taxes and
social insurance premiums according to Dutch law in respect of all
amounts to be paid to Mr. van Nieuwenhuyzen under this Agreement;
unless, in accordance with Dutch law and regulations, it results from
this Agreement and from the nature of the payment to be made that it
can be made untaxed and not subject to withholding.
The employee cannot claim compensation for overwork.
In addition to the Base Salary, Mr. van Nieuwenhuyzen will be eligible
for participation in an incentive bonus program as established by the
Company (subject to meeting targets, based on criteria to be determined
by the Company at its sole discretion) with the bonus in the amount of
40% of Base Salary plus annual holiday supplement upon achieving the
targets. Such bonus is not guaranteed, but is subject to an
accelerator/decelerator based on beating/missing the European and
overall Company financial plan. It is expected that about 80% of this
payment will be based on European performance and 20% on total Company
performance, and may vary from year to year. For the first two quarters
of employment, the bonus will be guaranteed and paid in arrears at
40,000 Gldrs each quarter. Thereafter, bonus is not guaranteed and will
be paid annually soon after the end of the Company's fiscal year end
(December 31st).
In addition to the Base Salary, Mr. van Nieuwenhuyzen will receive a
stock option for 50,000 shares awarded under the Harbinger Corporation
1996 Stock Option Plan ("Plan"). Shares underlying award vest evenly
over 4 years. The option is awarded under the Plan approved by the
Dutch tax authorities. Mr. van Nieuwenhuyzen will be liable for any tax
liability from this award. The Company will loan Mr. van Nieuwenhuyzen
up to 100,000 Gldrs to pay these taxes, for one year, at an interest
rate of 9.0% after which principal and interest will be due and payable
in full.
Mr. van Nieuwenhuyzen will receive an expense allowance of Gldrs.
10,000 per year.
4. Company Car
a. In order to carry out his duties, the Company will place a
company car equal to a BMW 525 or equivalent at Mr. van
Nieuwenhuyzen's disposal, including petrol costs but excluding
VAT, on lease basis based on 30,000 km per year, with due
consideration of the clause below referring to private use.
The company car is provided pursuant to a separate company car
Agreement.
Mr. van Nieuwenhuyzen is authorized to use the company car for
reasonable private use including travel aboard. It is at the
discretion of the Company to decide what is understood by
reasonable private use.
b. When Mr. van Nieuwenhuyzen, for any reason, does not carry out
any duties for the Company for a period in excess of one
month, he is obliged to return the car to the Company.
c. Mr. van Nieuwenhuyzen acknowledges that the allowances and
private use of the car mentioned hereabove might give rise to
tax liability. The financial consequences of such liability
shall be borne by Mr. van Nieuwenhuyzen.
5. Paid Leave
a. Each calendar year the employee is entitled to 25 days leave.
The dates will be fixed by the Company after consultation with
Mr. van Nieuwenhuyzen.
b. The company will not provide financial compensation for unused
days of leave.
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c. Upon termination of employment, Mr. van Nieuwenhuyzen will
receive compensation for the remaining days of leave.
d. If Mr. van Nieuwenhuyzen has taken too many days leave in
proportion to the term of employment, he will repay the
Company with an amount representing the excess days. This
amount can be deducted by the Company from the amount still
owing to Mr. van Nieuwenhuyzen.
6. Incapacity to work due to illness
a. In the event that Mr. van Nieuwenhuyzen is unable to perform
his duties for reasons of illness, the Company will pay one
hundred percent (100%) of the Employee's last earned gross
Base Salary for a maximum period of four weeks. Thereafter the
Company will pay seventy (70%) of the Employee's last earned
gross Base Salary for a maximum period of 48 weeks.
b. The employee shall not be entitled to receive supplementary
payments 30% over the legal minimum of 70% of his salary
payments, if and to the extent that the employee shall have a
claim on a third party in connection with his disability to
work. Notwithstanding the foregoing, the Company may at its
sole discretion nevertheless decide to make these
supplementary payments by way of an advance on damages to be
received by the employee from such third party, subject to
assignment by the employee to the Company of that claim on a
third party for the amount of the advances made by the
Company.
7. Duty to Maintain Secrecy
a. The Company may disclose to Employee certain Trade Secrets and
Confidential Information (defined below). Employee
acknowledges and agrees that the Trade Secrets and
Confidential Information are the sole and exclusive property
of the Company (or a third party providing such information to
the Company) and that the Company or such third party owns all
worldwide rights therein under patent, copyright, trade
secret, confidential information, or other property right.
Employee acknowledges and agrees that the disclosure of the
Trade Secrets and Confidential Information to Employee does
not confer upon Employee and license, interest or rights of
any kind in or to the Trade Secrets of Confidential
Information. Employee may use the Trade Secrets and
Confidential Information solely for the benefit of the Company
while Employee is employed or retained by the Company. Except
in the performance of services for the Company, Employee will
hold in confidence and not reproduce, distribute, transmit,
reverse engineer, decompile, disassemble, or transfer,
directly or indirectly, in any form, by any means, or for any
purpose, the Trade Secrets or the Confidential Information or
any portion thereof. Employee agrees to return tot he Company,
upon request by the Company, the Trade Secrets and
Confidential Information and all materials relating thereto.
b. Employee's obligations under this Agreement with regard to the
Trade Secrets shall remain in effect for as long as such
information shall remain a trade secret under applicable law.
Employee acknowledges that its obligations with regard to the
Confidential Information shall remain in effect while Employee
is employed or retained by the Company and for three (3) years
thereafter. As used herein, "Trade Secrets" means information
of the Company, its licensers, suppliers, customers, or
prospective licensers or customers, including, but not limited
to, technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product
plans, or a list of actual or potential customers or
suppliers, which (a) derives economic value, actual or
potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or user; and (b)
is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. As used herein,
"Confidential Information" means information, other than Trade
Secrets, that is of value to its owner and is
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treated as confidential, including, but not limited to, future
business plans, licensing strategies, advertising campaigns,
information regarding executives and employees, and the terms
and conditions of this Agreement.
c. The employee must obtain written permission of the Company
before submission of any written material submitted for
publication, which have any relation to the Company or related
companies.
8. Supplementary Occupational Disability
The Company has arranged for a supplementary occupational disability
insurance, which will provide coverage in case of disability
(arbeidsongeschiktheid). The Company will pay 50% of the premium for
such insurance. This coverage will pay the difference between 70% of
the annual salary and the maximum payment by the state provided under
the Disability Act (WAO), known as wage-privation
(loondervingsuitkering). In many cases the state provided payment may
decrease significantly over time or be lower, if the employee does not
or no longer qualifies for this wage-privation payment. The difference
between the wage-privation payment and the lower level (known as
WAO-gat) will not be covered by the Company's disability plan. This
coverage is not mandatory. The employee can make arrangements for such
coverage at his own discretion.
This insurance is subject to satisfying medical eligibility. The
regulations of this insurance will be provided as a supplement to this
contract.
9. Health Insurance
The Company shall provide Employee with enrollment in Company's Dutch
medical plan subject to benefits and restrictions applicable to all
Dutch employees of the Company
10. Pension
There are no pension contributions by the company to Mr. van
Nieuwenhuyzen in his position.
11. Non-competition
Mr. van Nieuwenhuyzen will during a period of one year after
termination of his employment abstain by way of employment or otherwise
of exercising any activity, which may be considered to be competitive
with that, activity carried out by Harbinger Corporation and/or an
affiliated company. The restriction shall be valid in Europe and
Africa.
The Company may give permission in writing to allow Mr. van
Nieuwenhuyzen to not be bound by some or all of the terms of this
provision.
12. Severance Payment
In case of termination of this contract by the Company without cause,
the company will continue salary payments to the employee for a minimum
of three months after termination or one month per year, whichever is
greater.
13. Inventions
The Company must immediately be informed of all inventions (patentable
or not) made by the employee during his employment with the Company and
the three years thereafter, independently or in connection with others,
having any connection with the Company activities. All such invention
becomes
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unconditional property of the Company. The duty of maintaining secrecy
as described in Article 7 also applies in such cases.
All designs, drawings, memoranda, notes, brochures and similar
documents containing information concerning such inventions, or other
confidential, financial or business information will be returned by the
employee to the Company upon request.
As far as it is necessary, the employee will cooperate with
establishment of industrial property rights over the inventions as
described in this article and make over such rights to the Company.
14. Amendments
Amendments to this contract of employment can only be agreed upon in
written form.
15. Applicable Law
This Agreement will be governed by and shall be construed in accordance
with the laws of The Netherlands. All conflicts shall be submitted to
the competent court in The Netherlands. This Agreement cancels and
replaces all past Agreements, understandings and all letters or
documents exchanged between the parties, prior to the date of this
Agreement.
HARBINGER CORPORATION MR. VAN NIEUWENHUYZEN
/s/ David Leach /s/ Willem van Nieuwenhuyzen
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By: The Employee
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