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EXHIBIT 10.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made and entered into effective as of March
1, 2001 ("Effective Date") by and between CyberGuard Corporation, Florida
corporation with principal place of business located at 0000 X. Xxxxxxxxxx
Xxxx., Xxxx Xxxxxxxxxx, XX 00000, X.X.X. ("Company"), and Xxxxx X. Xxxxxxx, an
individual residing at 0000 Xxxxx Xxxxx Xxxxx, Xxxxxx, XX 00000 ("Consultant");
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company wishes to retain the services of the Consultant, and the Consultant is
willing to provide consulting services to the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein and other good and valuable
consideration, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. TERM. Subject to the provisions for termination hereinafter
set forth, the Company hereby engages the Consultant, and the
Consultant hereby accepts such engagement by the Company, as a
consultant, on the basis as an independent contractor, for a
term commencing on the Effective Date and continuing for one
(1) year ("Term"). This Agreement will terminate upon
expiration of the Term and may be renewed only upon both
parties' written agreement.
2. DUTIES. During the Term, the Consultant shall perform such
services and complete such duties hereunder (i) as are
assigned to him by the Chief Executive Officer of the Company
("CEO") and (ii) that are outside of the scope of the
Consultant's duties as the Chairman, or a member, of the
Company's Board of Directors.
3. FEES. During the Term and for the due and faithful performance
of the services contemplated by this Agreement, the Company
will pay the Consultant a fee in the amount of one thousand
U.S. dollars ($1,000.00) ("Fee") for each day the Consultant
provides services hereunder, as assigned by the CEO; provided,
however that the Consultant obtains a written approval from
the CEO prior to commencing any services hereunder. In support
of the Fees to be paid, the Consultant will submit appropriate
supporting documentation and monthly billing/invoice
documents.
4. EXPENSES. The Company will reimburse the Consultant for his
reasonable and necessary business expenses related to the
performance of duties hereunder. In support of expenses to be
reimbursed, the Consultant will submit appropriate supporting
documentation and receipts in accordance with Company policy
and monthly billing/invoice documents.
5. INDEPENDENT CONTRACTOR. The Consultant shall be and remain
only an independent contractor. Nothing contained herein shall
be deemed or construed to create any association, partnership,
joint venture, employer/employee relationship. The Consultant
shall not be eligible to participate in any benefit plans,
programs or arrangements made available to employees of the
Company. The Consultant expressly acknowledges and agrees that
he will not be treated and will not seek to be treated as an
employee of the Company for any purpose.
6. TERMINATION OF AGREEMENT. This Agreement may be terminated by
either party hereto at anytime upon thirty (30) days prior
written notice to the other party. This Agreement may be
terminated by the Company, and such termination will be
immediate, if the Company states as cause for the termination:
a material breach of this Agreement; or an act of gross
negligence or willful misconduct by the Consultant; or the
commission of a felony or other act that constitutes a
material breach of reasonable business ethics by the
Consultant ("Cause").
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7. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary, in
no event shall CyberGuard's aggregate liability for damages arising
from or in connection with this Agreement exceed the amount of the Fees
payable by CyberGuard to Consultant under this Agreement during the
three (3) month period preceding the date a claim arises.
Notwithstanding anything to the contrary, in no event shall CyberGuard
be liable for any indirect, incidental, consequential, special,
punitive or exemplary damages arising out of or in connection with this
Agreement.
8. MISCELLANEOUS.
(a) The invalidity or unenforceability of any particular
provisions of this Agreement shall not affect the other
provisions hereof; and this Agreement shall be construed in
all respects as if such invalid or unenforceable provisions
were omitted.
(b) This Agreement constitutes and expresses the entire agreement
of the parties with respect to the subject matter hereof and
supersedes and cancels all prior negotiations, discussions,
agreements and understandings relating to such subject matter.
This Agreement may not be modified or amended except by an
instrument in writing executed by both parties hereto.
(c) This Agreement shall be binding upon the parties hereto, their
heirs, legal representatives, successors, and assigns and
shall not be assignable by either party, except upon prior
written consent by both parties to this Agreement, except that
the Company may assign its rights and delegate its duties
hereunder to any business entity with which the Company
engages in merger, share exchange, assets sale, or similar
corporate transaction.
(d) All required or permitted notices, requests, demands and other
communications hereunder shall be in writing and shall be
deemed effectively given on the day of delivery if delivered
by hand, or on the third day after mailing if mailed within
the continental United States by first class certified mail,
return receipt requested, postage prepaid.
(e) This Agreement shall be governed by the law of the State of
Florida and the exclusive jurisdiction and venue for resolving
any disputes hereunder shall be the courts located in Broward
County, State of Florida.
(f) Failure by either party at any time to enforce any obligation
by the other party, to claim a breach of any term of this
Agreement or to exercise any power agreed to hereunder will
not be construed as a waiver of any right, power or obligation
under this Agreement, will not affect any subsequent breach,
and will not prejudice either party as regards any subsequent
action.
(g) The provisions of this Agreement that by their nature and
content are intended to survive the performance hereof, shall
so survive and continue beyond any completion or termination
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
CYBERGUARD CORPORATION CONSULTANT
By:
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Xxxxx X. Xxxxxxx, CEO Xxxxx X. Xxxxxxx
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