EXHIBIT 10.1
SECURE COMPUTING CORPORATION
EMPLOYMENT AGREEMENT
SECURE COMPUTING CORPORATION, its subsidiaries, affiliates, successors or
assigns (together the "Company"), and Xxxx X. XxXxxxx agree as follows:
1. Positions and Responsibilities.
1.1 You shall serve as President and Chief Operating Officer, reporting
to the Chief Executive Officer (CEO) and perform the duties customarily
associated with such capacity from time to time and at such place or places as
the Company shall designate or as shall be appropriate and necessary in
connection with such employment. You will also serve as a member of the Board of
Directors, subject to Board approval. You will be expected to be named Chief
Executive Officer within twelve (12) months, subject to satisfactory performance
by you and by the Company. This will require Board of Directors' approval. The
current Chairman and CEO will stay on as active Chairman for at least twelve
(12) months thereafter, and longer, if possible.
1.2 You will, to the best of your ability, devote your full time and
best efforts to the performance of your duties hereunder and the business and
affairs of the Company, with the exception of serving on boards approved by the
Chairman of Secure Computing Corporation.
1.3 You will duly, punctually and faithfully perform and observe any
and all rules and regulations which the Company may now or shall hereafter
establish governing the conduct of its business.
2. Term of Employment.
2.1 The term of your employment agreement shall commence on May 3, 1999
and terminate in one year, subject to automatic renewal for successive one year
terms unless either party shall have notified the other in writing not less than
thirty (30) days prior to the then current expiration date of this Agreement of
such party's determination not to renew this Agreement.
2.2 The Company shall have the right, on written notice to you,
(a) to terminate your employment immediately at any time
for cause, or
(b) to terminate your employment at any time after May 3,
1999, or to not renew this Agreement at any time,
without cause provided the Company shall be obligated
in either case to pay to you as severance an amount
equal to one year's base salary less applicable taxes
and other required withholdings and any amount you
may owe to the Company, payable in full immediately
upon such termination. Such severance payment shall
be contingent upon you signing a Separation and
Release Agreement in a form satisfactory to the
Company which assures, among other things, that you
will not commence any type of litigation or other
claims as a result of the termination.
2.3 For purposes of this Section 2.2, you may be terminated for cause
if, in the reasonable determination of the Company's CEO, you are convicted of
any felony or of any crime involving moral turpitude, or participate in fraud
against the Company, or intentionally damage any property of the Company, or
wrongfully disclose any trade secrets or other confidential information of the
Company to any of its competitors, or materially breach Sections 4 (Confidential
Information) or 5 (Other Activities During Employment) of this Agreement.
3. Compensation.
3.1 The Company shall pay to you for the services to be rendered
hereunder a base salary at an annual rate of three hundred thousand dollars
($300,000), subject to increase in accordance with the policies of the Company,
payable in installments in accordance with Company policy.
(a) The Board of Directors will review the base salary from
time to time, no less frequently than annually, and may in their sole
discretion adjust the base salary upward, but not downward, to reflect
performance, appropriate industry guideline data and other factors.
(b) If certain personal and corporate performance goals
established from time to time by the Chairman are met, you will be
entitled to a cash performance bonus of up to 100% of annual base
salary, with respect to each fiscal year, prorated for the remainder of
fiscal 1999, subject to Compensation Committee approval.
3.2 You shall also be entitled to all rights and benefits for which you
shall be eligible under deferred bonus, pension, group insurance, profit-sharing
or other Company benefits which may be in force from time to time and provided
for the Company's executives generally.
3.3 You will be reimbursed for reasonable expenses incurred on behalf
of the Company upon presentation of appropriate receipts.
3.4 Subject to Board of Directors approval, you will be granted a stock
option to purchase 350,000 shares of Secure Computing Common Stock, one-third
(1/3) of which will vest each year for three (3) years, vesting immediately upon
change of control as will be defined in your Stock Option Agreement. In
addition, beginning on May 3, 1999, you will be eligible to participate in the
Executive Incentive Option Program, wherein you may earn an additional 250,000
shares of stock (100,000 each year for the first two years and 50,000 for the
third year) based on the following performance criteria: to grow the stock price
by $10 per share over the May 3, 1999 closing price. Each delta will last for
one year and the increased stock price must hold for ten (10) consecutive
business days. 100,000 shares to vest only in the event SCUR stock price is at
or above $14.250 by May 3, 2000; 100,000 shares to vest only in the event SCUR
stock price is at or above $24.250 by May 3, 2001; and 50,000 shares to vest
only in the event SCUR stock price is at or above $34.250 by May 3, 2002.
4. Confidential Information.
4.1 You represent and warrant that at all times during the term of your
employment and thereafter, to hold in strictest confidence, and not to use or
disclose, except for the benefit of the Company, to any person, firm or
corporation without written authorization of the Chief Executive Officer of the
Company, any Confidential Information of the Company. You understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer lists and customers (including, but
not limited to, customers of the Company on whom you called or with whom you
became acquainted during the term of your employment), markets, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering data, hardware configuration information, marketing, financial or
other business information disclosed to you by the Company either directly or
indirectly in writing, orally or by drawings or observation of parts or
equipment. You further understand that Confidential Information does not include
any of the foregoing items which has become publicly known and made generally
available through no wrongful act of yours or of others who were under
confidentiality obligations as to the item or items involved or improvements or
new versions thereof.
4.2 You recognize that the Company has received and in the future will
receive from third parties their confidential or proprietary information subject
to a duty on the Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. You agree to hold
all such confidential or proprietary information in the strictest confidence and
not to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out your work for the Company consistent with the
Company's agreement with such third party.
5. Other Activities During Employment.
5.1 Except as stated herein or with the prior written consent of the
Board of Directors, you will not during the term of this Agreement undertake or
engage in any other employment, occupation or business enterprise other than
ones in which you are a passive investor, with exception of approved Board of
Directors seats.
5.2 Except as permitted by Section 5.3, you will not acquire, assume or
participate in, directly or indirectly, any position, investment or interest
adverse or antagonistic to the Company, its business or prospects, financial or
otherwise, or take any action toward or looking toward any of the foregoing.
5.3 During the term of your employment by the Company except on behalf
of the Company or its subsidiaries, you will not directly or indirectly, whether
as an officer, director, stockholder, partner, proprietor, associate,
representative, consultant, or otherwise, become or be interested in any other
person, corporation, firm, partnership or other entity whatsoever which
manufacturers, markets, sells, distributes or provides consulting services
concerning products or services which compete with those of the Company or any
of its subsidiaries. However, nothing in this Section 5.3 shall preclude you
from holding less than one percent of the outstanding capital stock of any
corporation required to file periodic reports with the Securities Exchange
Commission under Sections 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, the securities of which are listed on any securities exchange, quoted
on the National Association of Securities Dealers Automated Quotation System or
traded in the over-the-counter market, notwithstanding current and any future
investment in Digital Integrity Incorporated. During the term of your employment
with the Company you will also not directly or indirectly intentionally solicit,
endeavor to entice away from the Company, or any of its subsidiaries, or
otherwise interfere with the relationship of the Company, or any of its
subsidiaries with, any person who is employed by or otherwise engaged to perform
services for the Company, or any of its subsidiaries (including, but not limited
to, any independent sales representatives or organizations), or any other person
or entity who is, or was within the then most recent 12-month period, a customer
or client of the Company, or any of its subsidiaries, whether for your own
account or for the account of any other person, corporation, firm, partnership
or other entity whatsoever.
6. Former Employment.
6.1 You represent and warrant that your employment by the Company will
not conflict with and will not be constrained by any prior employment or
consulting agreement or relationship. You represent and warrant that you do not
possess confidential information arising out of prior employment which, in your
best judgment, would be utilized in connection with your employment by the
Company in the absence of Section 6.2.
6.2 If, in spite of the second sentence of Section 6.1, you should find
that confidential information belonging to any former employer might be usable
in connection with the Company's business, you will not intentionally disclose
to the Company or use on behalf of the Company any confidential information
belonging to any of your former employers; but during your employment by the
Company you will use in the performance of your duties all information which is
generally known and used by persons with training and experience comparable to
your own and all information which is common knowledge in the industry or
otherwise legally in the public domain.
7. Survival. Your duties under Section 4 (Confidential Information) shall
survive termination of your employment with the Company to the extent provided
above.
8. Assignment. This Agreement and the rights and obligations of the parties
hereto shall bind and inure to the benefit of any successor or successors of the
Company by way of reorganization, or merger and any assignee of all or
substantially all or its business and properties, but, except as to any such
successor or assignee of the Company, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Company or by you.
9. Interpretation. In case any one or more of the provisions contained in the
agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the other provisions of this Agreement, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein. If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it so as to be enforceable to the extent compatible with the applicable
law as it shall then appear.
10. Notices. Any notice which the Company is required or may desire to give to
you shall be given by personal delivery or registered or certified mail, return
receipt requested, addressed to you at the address of record with the Company,
or at such other place as you may from time or time designate in writing. Any
notice which you are required or may desire to give to the Company hereunder
shall be given by personal delivery or by registered or certified mail, return
receipt requested, addressed to the Company at its principal office, or at such
other office as the Company may from time to time designate in writing, to the
attention of the Chairman of the Compensation Committee. The date of personal
delivery or the date of mailing such notice shall be deemed to be the date of
delivery thereof.
11. Waiver. If either party should waive any breach of any provisions of this
Agreement, he or it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provisions of this Agreement.
12. Complete Agreement; Amendments. The foregoing is the entire agreement of the
parties with respect to the subject matter hereof. This Agreement may not be
amended, supplemented, canceled or discharged except by written instrument
executed by both parties hereto.
13. Applicable Law. This agreement has been negotiated in, and shall be governed
by the laws of, the State of California, without giving effect to conflict of
law principles.
14. Heading. The heading of the sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to affect the
meaning thereof.
SECURE COMPUTING CORPORTION
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Accepted and agreed as of the Third
day of May, 1999.
/s/ Xxxx X. XxXxxxx
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Xxxx X. XxXxxxx
