EXHIBIT 10.2
SECURE COMPUTING CORPORATION
XXX XXXXXXX XXXXXXXXX, XXXXX 000
XXX XXXX, XX 00000
MARCH 1, 2001
XXXXXXX X. XXXXXXXXX
EMPLOYMENT AGREEMENT
SECURE COMPUTING CORPORATION, its subsidiaries, affiliates, successors or
assigns (together the "Company"), and Xxxxxxx X. Xxxxxxxxx agree as follows:
1. Position and Responsibilities
1.1 You shall serve as Vice President and Chief Financial Officer (CFO),
reporting the President and Chief Operating Officer (COO) 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.
1.2 You will, to the best of your ability, devote your full time and best
efforts to the performance your duties hereunder and the business and
affairs of the Company.
1.3 You will duly, punctually and faithfully perform and observe any and
all rules and regulations that 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 shall commence on March 1, 2001 (effective
date) 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 to:
(a) terminate your employment immediately at any time for cause, or
(b) terminate your employment at any time after effective date or to
not renew this Agreement at any time, without cause provided the Company
shall be obligated to pay to you as severance an amount equal to six (6)
month's base salary less applicable taxes and other required withholdings
and any such 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 that 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, 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
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any of its competitors, or materially breach Secions 4 (Confidential
Information) or 5 (Other Activities During Employment) of this Agreement.
3. Compensation
3.1 The Company shall pay you for the services to be rendered hereunder a
base salary at an annual rate of one hundred, eighty thousand dollars
($180,000), subject to increase in accordance with the policies of the
Company, payable in installments in accordance with Company policy.
3.2 If certain personal and corporate performance goals established from
time to time under the policies of the approved Management Incentive
Program (MIP) are met, the Company shall pay you in accordance with the
policy of the approved Management Incentive Program a cash performance
bonus of up to thirty-five (35%) of annual base salary, with respect to
each fiscal year, prorated during 2001.
3.3 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 that may be in force from time to
time and provided for the Company's executives generally.
3.4 You will be reimbursed in accordance with the Company policy for
reasonable expenses incurred on behalf of the Company upon presentation of
appropriate receipts.
3.5 Subject to Board of Director's approval, you will be granted a stock
option to purchase one hundred fifty thousand (150,000) shares of Secure
Computing Common Stock vesting immediately upon change of control as will
be defined in your Stock Option Agreement.
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 President and COO of the
Company, any Confidential Information of the Company. You 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 that 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 the confidentiality of such 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.
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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 that manufacturers, markets, sells, distributes or
provides consulting services concerning products or services that 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. 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 that,
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 that is generally known and used by persons
with training and experience comparable to your own and all information
that 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 of 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 as 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 that 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 to time designate
in writing. Any notice that you are required or may desire to give 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
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the President and COO. 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 CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------------
Xxxxxxx X. XxXxxxxx, President and Chief
Operating Officer
Accepted and agreed as of the 1st Day of March, 2001.
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
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