EXHIBIT 10.6
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is made by and
between Secure Computing Corporation (the "Company") and Xxxxxxx X. Xxxxxx
("Employee").
WHEREAS, Employee and the Company mutually agree that Employee's
employment as Chief Executive Officer of the Company shall be terminated
effective on June 30, 1999; and hereby resigns as a member of the Board of
Directors of the Company, effective the same date; and
WHEREAS, Employee does not have pending against the Company any claim,
charge, or action in or with any federal, state, or local court or
administrative agency; and
WHEREAS, Employee and the Company desire to settle fully and finally
all differences between them.
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree as
follows:
1. Resignation. Employee agrees to resign from employment as Chief
Executive Officer of the Company and to resign as a Director of the Company,
effective June 30, 1999. The Company shall issue a press release stating that
Employee is resigning for personal reasons.
2. Consideration. The Company agrees to pay Employee nine (9) months of
base salary, less applicable withholdings. This amount will be paid as a lump
sum payment no later than July 9, 1999. The Company shall also reimburse
Employee for any outstanding expense reports. In addition, for a period of
twelve (12) months commencing July 1, 1999, the Company shall pay for office
space for Employee in an amount not to exceed $2,000 per month.
3. Continued Benefits. Employee's medical benefits will be paid through
the end of June. Employee will be notified of his rights to continue benefits
for up to eighteen (18) months under COBRA.
4. Stock Options. The exercise of any stock options shall continue to
be subject to the terms and conditions of the Company's Stock Option Plan and
the applicable Stock Option Agreement between Employee and the Company.
5. Payment of Salary. Employee acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to Employee.
6. Indemnification of Employee. To the extent permitted by law, the
Company will provide Employee indemnity, in accordance with the applicable
provisions of the Company's Articles of Incorporation and its By-Laws, and will
cover Employee under any directors and officers liability insurance policy
maintained by the Company for directors and officers, against all expense,
liability and loss (including attorneys' fees and settlement payments) that
Employee may incur by reason of any action, suit or proceeding arising from or
relating to his position as an employee, officer or director of the Company.
Employee will cooperate with the Company in the defense of any such matters.
7. Mutual Release. (a) Employee, on behalf of himself, and his heirs,
family members, executors and assigns, hereby releases and forever discharges
Company, and its executors, officers,
directors, employees, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, from any and
all existing claims, liens, demands, causes of action, obligations, damages and
liabilities, known or unknown, that Employee ever had, now has or may hereafter
claim to have against them, arising directly or indirectly out of, or in any way
connected with or based upon, or related in any way to his employment with the
Company or his termination therefrom including any and all claims for violation
of any federal, state or municipal statute, including, but not limited to, Title
VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967; the Americans with Disabilities Act of
1990; the Fair Labor Standards Act; the Employee Retirement Income Security Act
of 1974; The Worker Adjustment and Retraining Notification Act; the Older
Workers Benefit Protection Act; the California Civil Code; the California Fair
Employment and Housing Act and Labor Code section 201, ET SEQ. and section 970,
ET SEQ.; and
(b) Company, on behalf of itself and its executors, officers,
directors, employees, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
hereby releases and forever discharges Employee, and his heirs, family members,
executors and assigns, from any and all claims, liens, demands, causes of
action, obligations, damages and liabilities, known or unknown, that Company
ever had, now has or may hereafter claim to have against his or them arising
directly or indirectly out of, or in any way connected with or based upon, or
related in any way to his employment with the Company or his termination
therefrom;
(c) except that neither Employee nor the Company releases each other
from any claims, liens, demands, causes of action, obligations, damages and
liabilities, known or unknown, arising from, related or connected to, directly
or indirectly, present or future claims of securities fraud, breach of fiduciary
duty or similar claims against the Company and its officers and directors,
including, by way of illustration and not limitation, the causes of action as
stated in Xxxxx Xxxxxxxxx vs. Secure Computing Corporation, et al (U. S. Dist.
Court, ND Calf., C.99-20279), including any derivative actions.
Employee and Company agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
8. Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges
that he is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that (a) he should consult
with an attorney prior to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has at
least seven (7) days following the execution of this Agreement by the parties to
revoke the Agreement; and (d) this Agreement shall not be effective until the
revocation period has expired.
9. California Civil Code Section 1542. Employee represents that he is
not aware of any claim other than the claims that are released by this
Agreement. Employee acknowledge that he has been advised by legal counsel and is
familiar with the provisions of California Civil Code Section 1542, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF
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KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Employee, being aware of said Code section, agrees to expressly waive
any rights he may have thereunder, as well as under any other statute or common
law principles of similar effect.
10. No Future Lawsuits. Employee represents that he has no lawsuits,
claims, or actions pending in his name, or on behalf of any other person or
entity, against the Company or any other person or entity referred to herein.
Employee also represents that he does not intend to bring any claims on his own
behalf or on behalf of any other person or entity against the Company or any
other person or entity referred to herein.
11. Confidentiality. The Parties hereto agree to use their best efforts
to maintain in confidence the existence of this Agreement, the contents and
terms of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"). The Parties hereto agree
to take every reasonable precaution to prevent disclosure of any Settlement
Information to third parties except as required by law, and agree that there
will be no publicity, directly or indirectly, concerning any Settlement
Information. The Parties hereto agree to take every precaution to disclose
Settlement Information only to those attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such
Settlement Information.
12. No Cooperation. Employee agrees that he will not counsel or assist
any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so.
13. Non-Disparagement. Each Party agrees to refrain from any
defamation, libel or slander of the other, or tortious interference with each
other's contracts and relationships. The Company will make all reasonable
efforts to insure that its officers, directors and employees comply with this
provision of this Agreement. All inquiries by potential future employers of
Employee will be directed to the Company's Director of Human Resources. Upon
inquiry, the Company shall only state the following: Employee 's last position
and dates of employment.
14. No Admission of Liability. Employee understands and acknowledges
that this Agreement constitutes a compromise and settlement of disputed claims.
No action taken by the Company hereto, either previously or in connection with
this Agreement, shall be deemed or construed to be (a) an admission of the truth
or falsity of any claims heretofore made or (b) an acknowledgment or admission
by the Company of any fault or liability whatsoever to Employee or to any third
party.
15. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement,
except as provided in paragraph 2 herein.
16. Tax Consequences. The Company makes no representations or
warranties with respect to the tax consequences of the payment of any sums to
Employee under the terms of this Agreement. Employee agrees and understands that
he is responsible for payment, if any, of local, state and/or federal taxes on
the sums paid hereunder by the Company and any penalties or assessments thereon.
17. Arbitration. The Parties agree that any and all disputes arising
out of the terms of this Agreement, their interpretation, and any of the matters
herein released, shall be subject to binding arbitration in Santa Xxxxx County,
California before the American Arbitration Association under its California
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Commercial Dispute Resolution Rules, or by a judge to be mutually agreed upon.
The Parties agree that the prevailing party in any arbitration shall be entitled
to injunctive relief in any court of competent jurisdiction to enforce the
arbitration award. The Parties agree that the prevailing party in any
arbitration shall be awarded its reasonable attorney's fees and costs. Employee
expressly acknowledges that he is waiving any right to a jury trial for any and
all claims covered by this Agreement.
18. Solicitation of Employees. Employee agrees that he will not, for a
period of six (6) months immediately following the Effective Date of this
Agreement, by himself or in collaboration with others, either directly or
indirectly initiate contact to solicit or recruit any of the Company's employees
to leave their employment, or take away such employees, or attempt to solicit,
recruit, or take away employees of the Company, either for himself or any other
person or entity.
19. Returning Company Documents. Employee agrees on the Effective Date
of this Agreement, he shall deliver to the Company (and will not keep in his
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by Employee during the
course of his employment with the Company or otherwise belonging to the Company,
its successors or assigns.
20. Company Confidential Information. Employee acknowledges that the
confidentiality provisions stated in the November 4, 1996 Secure Computing
Corporation Employment Agreement continue to be in full force and effect.
21. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Employee represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each Party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
22. No Representations. Employee represents that he has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Employee has not
relied upon any representations or statements made by the Company which are not
specifically set forth in this Agreement.
23. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
24. Entire Agreement. This Agreement represents the entire agreement
and understanding between the Company and Employee concerning Employee's
separation from the Company and the events leading thereto and associated
therewith, and supersedes and replaces any and all prior agreements and
understandings concerning Employee's relationship with the Company and his
compensation by the Company.
25. No Oral Modification. This Agreement may only be amended in writing
signed by Employee and the Compensation Committee of the Board of Directors.
26. Governing Law. This Agreement shall be governed by the laws of the
State of California.
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27. Effective Date. This Agreement is effective seven days after it has
been signed by both parties, provided Employee has not revoked the Agreement
prior to that date, and provided Employee has returned an executed Agreement to
the Company.
28. Counterparts. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
29. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation,
and execution of this Agreement by legal counsel of their own
choice or that they have voluntarily declined to seek such
counsel;
(c) They understand the terms and consequences of this Agreement
and of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
SECURE COMPUTING CORPORATION
Dated: June 30, 1999 By: /s/ Xxxx XxXxxxx
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XXXXXXX X. XXXXXX
Dated: June 26, 1999 By: /s/ Xxxxxxx X. Xxxxxx
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