EXHIBIT 10.1
SECURE COMPUTING CORPORATION
EMPLOYMENT AGREEMENT
SECURE COMPUTING CORPORATION, its subsidiaries, affiliates, successors or
assigns (together the "Company"), and Xxxx Xxxxxxxxxxx agree as follows:
1. Positions and Responsibilities.
1.1 You shall serve as Senior Vice President of Marketing, Strategic and
Product Planning, and Business Development, 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.
You will work primarily out of your home office in Oregon, traveling for face to
face team meetings and to fulfill your job responsibilities, when necessary and
appropriate.
1.2 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 July 6, 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 July 6,
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 six month'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 two hundred ten thousand dollars
($210,000), subject to increase in accordance with the policies of the Company,
payable in installments in accordance with Company policy.
(a) The CEO will review the base salary from time to time, no
less frequently than annually, and may in his 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 CEO are met, you will be entitled
to a cash performance bonus of up to sixty-five thousand dollars
($65,000) annually, and guaranteed during Q3 and Q4, 1999.
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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 210,000 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, you will have the opportunity during your first three years of your
employment to vest an additional seventy thousand shares, five year incentive
stock option, early, based on the following Secure Computing stock price
appreciation. Twenty thousand option shares at a option exercise price of the
closing price of Secure stock on your first day of employment (the "Strike
Price") will vest immediately upon the share price of Secure increasing by at
least ten dollars per share over the Strike Price during the first twelve months
of your employment and holding that price level for a period of at least ten
consecutive business days (based on the closing price of the stock.) An
additional twenty thousand shares will vest immediately upon the share price of
Secure increasing by at least twenty dollars per share over the Strike Price
during the first twenty four months of your employment and holding that price
level for a period of at least ten consecutive business days (based on the
closing price of the stock.) Finally, an additional thirty thousand shares will
vest immediately upon the share price of Secure increasing by at least thirty
dollars per share over the strike price during the first thirty six months of
your employment and holding that price level for a period of at least ten
consecutive business days (based on the closing price of the stock).
Notwithstanding the foregoing vesting schedule, in the event the above
accelerated vesting stock price criteria are not met for whatever reason, the
shares will vest and become exercisable on July 6, 2004.
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
CEO, 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.
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 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 CEO. 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.
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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\ Xxxx X. XxXxxxx
--------------------
Xxxx X. XxXxxxx
Chairman and Chief Executive Officer
Accepted and agreed as of the 2nd
day of July, 1999.
\s\ Xxxx Xxxxxxxxxxx
--------------------
Xxxx Xxxxxxxxxxx
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