Secure Computing Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
October 7, 1996
Employment Agreement
Secure Computing Corporation, a Delaware corporation (the "Company"),
and Xxxxx Xxxxx agree as follows:
1. Position and Responsibilities
1.1 You shall serve in the executive capacity as Vice President & General
Manager of the Government Division 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 of 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 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 October 7,
1996 and terminate in three years. Your employment may be terminated sooner at
any time by the Company as provided in Section 2.2 or by you upon 30 days
written notice.
2.2 The Company shall have the right, on written notice to you, to
terminate your employment
(a) immediately at any time for cause, or
(b) at any time after October 7, 1996 without cause provided
the Company shall be obligated to pay to you as severance pay
an amount equal to six month's basic salary less applicable
taxes and other required withholdings and any amount you may
owe to the Company, payable in full immediately upon such
termination.
2.3 For purposes of Section 2.2, you may be terminated for cause if, in
the reasonable determination of the Company's Board of Directors, 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
Section 4 of this Agreement or any provision of the Proprietary Information
Agreement (as defined in Section 6 hereof) between you and the Company.
3. Compensation; Stock Options
3.1 The Company shall pay to you for the services to be rendered
hereunder a basic salary at an annual rate of $120,000, subject to increase in
accordance with the policies of the Company, as determined by its Board of
Directors from time to time, payable in installments in accordance with Company
policy.
(a) The Compensation Committee of the Board of Directors will
review the base salary from time to time, no less frequently
than annually, and may in its sole discretion adjust the base
salary upward, but not downward, to reflect performance,
appropriate industry guideline data and other factors.
(b) If certain performance goals established from time to time
by the Board of Directors of the company are met, you will be
entitled to a performance bonus of 35% of base salary,
following each anniversary of the date hereof. The amount of
such bonus percentage may be increased, but not decreased by
the Board of Directors of the Company.
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 employees generally.
3.3 You will be reimbursed for reasonable expenses incurred on behalf of
the Company upon presentation of appropriate receipts.
3.4 You will be granted stock options per the Company's Amended and
Restated 1995 Omnibus Stock Plan to purchase 35,000 shares of Company Common
Stock at the exercise price of $13.50 per share. These options will vest
one-third each year beginning with the first anniversary of this agreement.
If your employment terminates prior to the first anniversary of this
agreement, any unvested stock options will be forfeited to the Company.
4. Other Activities During Employment
4.1 Except as stated herein or with the prior written consent of the
Company's 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.
4.2 Except as permitted by Section 4.3, 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.
4.3 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
manufactures, markets, sells, distributes or provides consulting services
concerning products or services which compete with those of the Company. You may
own, as a passive investor, securities of any such corporation which are listed
for trading on a national stock exchange or traded in the over-the-counter
market, quotations of which are published in an established business journal, so
long as your holdings in any one such corporation shall not in the aggregate
constitute more than 1% of the voting stock of such corporation.
5. Former Employment
5.1 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 5.2.
5.2 If, in spite of the second sentence of Section 5.1, 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 trainings and experience comparable to
your own and all information which is common knowledge in the industry or
otherwise legally in the public domain.
6. Proprietary Information and Inventions You agree to be bound by the
provisions of the Proprietary Information Agreement dated the date of this
Agreement between you and the Company (the "Proprietary Information Agreement").
7. Post-Employment Consultation
7.1 Upon the termination or expiration of your employment with the
Company pursuant to Section 2.1 or 2.2 above or otherwise, the Company shall
have the option to retain you as a consultant by notifying you of its desire to
so retain you within 7 days of such termination or expiration in writing mailed
to you at your last address as it appears in the Company's records. If you are
so retained, you shall, during the period for retention notify the Company of
any change in address and each subsequent employment (stating the name of and
address of the employer and the nature of your position) or business activity in
which you engage during such 30 days.
7.2 If the Company retains you as a consultant, you shall during the
period of such retention hold your self available to render consulting services
in your area of expertise or special competence for up to sixty (60) days for
not more than eighty (80) hours per month, for which the Company shall pay you
an amount equal to 50% of your monthly basic salary obtained under Section 3 at
the time of termination of your employment, whether or not you shall be called
upon to render any services in any such month. Additionally, if you are retained
as a consultant, during the consulting period, the Company will continue to
provide you with the Company's basic medical, dental, vision and life insurance
coverage in place at that time. Any out-of-pocket expenses including travel,
food, lodging and associated costs which your consulting activities for the
Company may require will be reimbursed against receipts and vouchers therefore
in accordance with the Company's policies in force from time to time.
7.3 During any period in which you are retained by the Company as a
consultant, the Company may terminate your status as a consultant by giving you
7 days' written notice, during which 7-day period you shall continue to receive
your monthly consulting fee but shall not be obligated to render or hold
yourself available to render any consulting services during such period.
Thereafter the Company shall have no further liability for consulting fees. All
other prohibitions of the Proprietary Information Agreement shall survive
termination of your status as a consultant to the extent provided in such
Proprietary Information Agreement.
8. Post Employment Activities
8.1 In the event and for so long as you are retained as a consultant by
the Company pursuant to Section 7 following the termination or expiration of
your employment with the Company hereunder, absent the Company's prior written
approval upon instructions of its Board of Directors, you will not, directly or
indirectly engage in activities (similar or reasonably related to those in which
you shall have engaged hereunder during the two year immediately preceding the
termination or expiration of your employment with the Company) for, nor render
services (similar or reasonable related to those which you shall have rendered
hereunder during such two years) to, any firm or business organization whether
now existing or hereafter established, which manufactures, markets, sells,
distributes or provides products or services which compete with those of the
Company on the date of termination of your employment, nor shall you engage in
such activities nor render such services to any other person or entity engaged
or about to become engaged in such activities to, for or on behalf of any such
firm or business organization, or employ any person to engage in any activity
which, were it done by you, would violate any provision of the Proprietary
Information Agreement or Section 8 hereof.
8.2 The Company upon instruction of its Board of Directors may give you
written approval to engage personally in any activity or render services
referred to in Section 8.1 if it secures written assurances (satisfactory to the
Company in its sole discretion) from you and from the prospective employer that
the integrity of the Proprietary Information Agreement will not in any way be
jeopardized by such activities, provided the burden of so establishing the
foregoing to the satisfaction of the Company shall be upon you and your
prospective employer(s).
8.3 In the event and for so long as you are retained as a consultant by
the Company pursuant to Section 7 following the termination or expiration of
your employment with the Company, the provisions of Section 4.3 shall be
applicable to you and you shall comply therewith.
9. Survival Your duties under the Proprietary Information Agreement and
Section 8 shall survive termination of your employment with the company to the
extent provided under such Proprietary Information Agreement or Section 8
hereof.
10. 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.
11. 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
unenforceability in any respect, such invalidity, illegality or unenforceable
shall not affect the other provision 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.
12. 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 to 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 as its principal office, or at such
other office as the Company may from time to time designate in writing. The date
of personal delivery or the date of mailing such notice shall be deemed to be
the date of delivery thereof.
13. 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.
14. Complete Agreement; Amendments The foregoing, together with a
Proprietary Information Agreement between you and the Company, is the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented, cancelled or discharged except by
written instrument executed by both parties hereto.
15. Applicable Law This agreement has been negotiated in, and shall be
governed by the laws of, the State of Minnesota.
16. 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: ______________________________
Xxxxxx X. Xxxxxx
Accepted and agreed this:
_____ day of _____________________, 1996;
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Xxxxx Xxxxx
