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Exhibit 10.2
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of June 1, 1998 by and between ARCA Systems, Inc. (the "Company"), a California
corporation and a wholly-owned subsidiary of CyberGuard Corporation, a Florida
corporation ("CyberGuard"), and __________________________ ("Employee").
WHEREAS, the Company, through its Board of Directors, desires to retain
the services of Employee, and Employee desires to be retained by the Company, on
the terms and conditions set forth in this Agreement;
WHEREAS, the services to be provided by Employee during the term of his
employment and consultancy are of a special, unique, unusual, extraordinary, and
intellectual character, which gives such services peculiar value, the loss of
which cannot be reasonably or adequately compensated in damages in an action at
law.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby
accepts employment, upon the terms of and subject to this Agreement.
2. TERM. The term (the "Term") of this Agreement shall commence on June
1, 1998 and shall continue until otherwise terminated in accordance with the
terms of this Agreement.
3. DUTIES. During his employment hereunder, Employee will serve in such
capacity and with such duties as shall be assigned from time to time by the
__________________________ of the Company. Employee shall diligently perform
such duties and shall devote his entire business skill, time and effort to his
employment and his duties hereunder and shall not during the Term, directly or
indirectly, alone or as a member of a partnership, or as an officer, director,
employee or agent of any other person, firm or business organization engage in
any other businessactivities or pursuits requiring his personal service that
materially conflict with his duties hereunder or the diligent performance of
such duties.
4. COMPENSATION.
(a) SALARY. During his employment hereunder Employee shall be paid a
salary of ____________________________ ($_______________ ) per year, payable in
equal installments not less than monthly ("Base Salary"). The Employee's Base
Salary shall be reviewed at least annually by the Board of Directors or any
Committee of the Board delegated the authority to review executive compensation.
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(b) BONUS. In addition to salary, Employee shall be eligible to
receive a targeted incentive bonus that will be established at the beginning of
each fiscal year. To be eligible to receive the targeted incentive bonus, in
full or in part, Employee will be required to fulfill performance goals to be
established by the Company.
(c) INSURANCE. During his employment hereunder, Employee shall be
entitled to participate in all such health, life, disability and other insurance
programs, if any, that the Company may offer to executive employees of the
Company from time to time.
(d) OTHER BENEFITS. During his employment hereunder, Employee shall
be entitled to all such other benefits, if any, that the Company may offer to
executive employees of the Company from time to time.
(e) VACATION. Employee shall be entitled to accrue that number of
weeks' vacation leave (in addition to holidays) during the Term in accordance
with the Company's vacation policy for employees as it may be in effect from
time to time. Notwithstanding the foregoing, Employee shall not be deemed to
have forfeited any unused vacation leave accrued prior to the date hereof.
(f) EXPENSE REIMBURSEMENT. Employee shall, upon submission of
appropriate supporting documentation, be entitled to reimbursement of reasonable
out-of-pocket expenses incurred in the performance of his duties hereunder in
accordance with policies established by the Company. Such expenses shall
include, without limitation, reasonable entertainment expenses, gasoline and
toll expenses and cellular phone use charges, if such charges are directly
related to the business of the Company.
5. GROUNDS FOR TERMINATION. The President of the Company may terminate
this Agreement for Cause. As used herein, "Cause" shall mean any of the
following: (i) conviction of Employee of a felony involving moral turpitude; or
(ii) a material act of dishonesty or breach of trust on the part of Employee
resulting or intended to result directly or indirectly in personal gain or
enrichment at the expense of the Company; or (iii) the material failure to
faithfully perform such duties as may be duly assigned to the Employee; if such
act is capable of cure, Employee shall be given written notice and such act
shall not be deemed a basis for Cause if cured within 60 days after written
notice is received by Employee specifying the alleged failure in reasonable
detail (and during such 60 day period, Employee shall continue to be employed by
the Company at full pay).
6. TERMINATION BY EMPLOYEE.
(a) TERMINATION WITH GOOD REASON. Employee may terminate this
Agreement with Good Reason. "Good Reason" means:
A material breach of the provisions of this Agreement by the Company
(except those set forth in Paragraph 4(a) above) and Employee
provides at least 15 days' prior
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written notice to the Company of the existence of such breach and
his intention to terminate this Agreement (no such termination shall
be effective if such breach is cured during such period); or
The failure of the Company to comply with the provisions of
Paragraph 4(a) or to pay any amounts due under the Management Bonus
Program provisions of Paragraph 4(b) for an uninterrupted 10 day
period; or
A reduction in Employee's base salary; or
A requirement by ARCA that Employee relocate beyond a 75-mile radius
of the office at which Employee was employed as of May 1, 1998.
(b) TERMINATION WITHOUT GOOD REASON. Employee may terminate this
Agreement without Good Reason on 30 days notice.
7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION.
(a) TERMINATION FOR CAUSE. In the event Employee's employment with
the Company (including its subsidiaries) is terminated by the Company for Cause
as provided in Paragraph 5 then, on or before Employee's last day of employment
with the Company, the provisions of this Paragraph 7(a) shall apply. These same
provisions shall apply if Employee terminates his employment with the Company
without Good Reason.
(i) SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS.
The Company shall pay in a lump sum to Employee at the time of Employee's
termination (a) an amount equal to the unpaid salary due to the Employee for
services performed prior to the date of termination of employment plus (b) such
amount of Employee's target incentive bonus as has been earned based upon
fulfilling performance goals, and been accrued but remains unpaid plus (c)
compensation for unused vacation time. Any and all other rights granted to
Employee under this Agreement shall terminate as of the date of termination.
(b) TERMINATION WITHOUT CAUSE. In the event Employee's employment
with the Company (including its subsidiaries) is terminated by the Company for
any reason other than for Cause as provided in Paragraph 5 and other than as a
consequence of Employee's death, disability, or normal retirement under the
Company's retirement plans and practices, then the following provisions apply.
These same provisions shall apply if Employee terminates his employment with
Good Reason as described in Paragraph 6. In addition to the amounts stated
below, Employee shall be paid an amount equal the unpaid salary due to the
Employee for services performed prior to the date of termination of employment
plus compensation for unused vacation time.
(i) SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS.
The Company shall pay to Employee as compensation for services rendered to the
Company a cash amount equal
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to one-half (1/2) of the Employee's annual base salary as then in effect plus
the greater of (x) one-half (1/2) the amount of Employee's targeted incentive
bonus for the fiscal year in which such employment is terminated, or (y) the
amount of the targeted incentive bonus to which he is entitled but which remains
unpaid. At the election of the Company, the cash amount referred to in this
Paragraph 7(b)(i) may be paid to Employee in one lump sum or in no less than six
equal monthly periodic installments, without interest, in accordance with the
regular salary payment practices of the Company, with the first such installment
to be paid on or before Employee's last day of employment with the Company, and
no interest shall be paid with respect to any amount not paid on the Employee's
date of termination.
(ii) VESTING OF OPTIONS AND RIGHTS. Notwithstanding
the vesting period provided for in the Stock Incentive Plan and any related
stock option agreements between the Company and Employee for stock options
("options") and stock appreciation rights ("rights") granted Employee by the
Company, all options and stock appreciation rights that were exercisable at the
date of termination or within six months thereafter shall be immediately
exercisable upon termination of employment. In addition, Employee will have the
right to exercise all such options and rights for the shorter of (a) six months
following his termination of employment or (b) with respect to each option, the
remainder of the period of exercisability under the terms of the appropriate
documents that grant such options.
(iii) BENEFIT PLAN COVERAGE. The Company shall
maintain in full force and effect for Employee and his dependents for six months
after the date of termination, all life, health, accident, and disability
benefit plans and other similar employee benefit plans, programs and
arrangements in which Employee or his dependents were entitled to participate
immediately prior to the date of termination, in such amounts as were in effect
immediately prior to the date of termination, provided that such continued
participation is possible under the general terms and provisions of such benefit
plans, programs and arrangements. In the event that participation in any benefit
plan, program or arrangement described above is barred, or any such benefit
plan, program or arrangement is discontinued or the benefits thereunder
materially reduced, the Company shall arrange to provide Employee and his
dependents for six months after the date of termination with benefits
substantially similar to those that they were entitled to receive under such
benefit plans, programs and arrangements immediately prior to the date of
termination. Notwithstanding any time period for continued benefits stated in
this Paragraph 7(b)(iii), all benefits in this Paragraph 7(b)(iii), will
terminate on the date that Employee becomes an employee of another employer and
eligible to participate in the employee benefit plans of such other employer. To
the extent that Employee was required to contribute amounts for the benefits
described in this Paragraph 7(b)(iii), prior to his termination, he shall
continue to contribute such amounts for such time as these benefits continue in
effect after termination.
(iv) SAVINGS AND OTHER PLANS. Except as otherwise
more specifically provided herein or under the terms of the respective plans
relating to termination of employment, Employee's active participation in any
applicable savings, retirement, profit sharing or supplemental employee
retirement plans or any deferred compensation or similar plan of the Company or
any of
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its subsidiaries shall continue only through the last day of his employment. All
other provisions, including any distribution and/or vested rights under such
plans, shall be governed by the terms of those respective plans.
(c) THIS SECTION DOES NOT ADDRESS TERMINATIONS AFTER A CHANGE IN
CONTROL. The provisions of this Paragraph 7 shall apply if Employee's employment
is terminated prior to a Change of Control (as defined in Paragraph 8) or more
than one year after the occurrence of a Change of Control. From the occurrence
of any Change of Control until the first anniversary of such Change of Control,
the provisions of Paragraph 8 shall apply in place of this Paragraph 7, EXCEPT
THAT in the event that Employee's employment is terminated by Employee after a
Change of Control without Good Reason, then the provisions of Paragraph 8 shall
not apply and the provisions of Paragraph 7(a) shall apply. Termination upon
death and disability are covered by Paragraphs 9 and 10, respectively.
8. PAYMENT AND OTHER PROVISIONS AFTER CHANGE OF CONTROL.
(a) SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS. In the event
Employee's employment with the Company is terminated within one year following
the occurrence of a Change of Control (other than as a consequence of his death
or disability) either (i) by the Company for any reason whatsoever or (ii) by
Employee with Good Reason as provided in Paragraph 6, then all benefits under
Paragraphs 7(b)(i), (ii), (iii) and (iv) shall be extended to Employee as
described in such Paragraphs except that all options and rights shall be
immediately exercisable.
(b) NONCOMPETITION PERIOD. In the event of a Change of Control and
the Company terminates Employee without Cause or the Employee terminates his
employment with Good Reason (as such term is defined in the first and second
clause of Paragraph 6(a) hereto), the provisions of Paragraphs 12, 13 and 16
shall be without force and effect and shall not apply to Employee.
(c) DEFINITION OF "CHANGE OF CONTROL." For purposes of this
Agreement, the term "Change of Control" shall mean
The acquisition, other than from the Company or CyberGuard, by any
individual, entity or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) (any of the foregoing described in this Paragraph
8(c)(i) hereafter a "Person") of 30% or more of either (a) the then outstanding
shares of Capital Stock of the Company or CyberGuard (the "Outstanding Capital
Stock") or (b) the combined voting power of the then outstanding voting
securities of the Company or CyberGuard entitled to vote generally in the
election of directors (the "Voting Securities"), PROVIDED, HOWEVER, that any
acquisition by (x) CyberGuard or any of its subsidiaries, or any employee
benefit plan (or related trust) sponsored or maintained by the Company or
CyberGuard or any of its subsidiaries or (y) any Person that is eligible,
pursuant to Rule 13d-1(b) under the Exchange Act, to file a statement on
Schedule 13G with
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respect to its beneficial ownership of Voting Securities, whether or not such
Person shall have filed a statement on Schedule 13G, unless such Person shall
have filed a statement on Schedule 13D with respect to beneficial ownership of
30% or more of the Voting Securities or (z) any corporation with respect to
which, following such acquisition, more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Capital Stock and
Voting Securities immediately prior to such acquisition in substantially the
same proportion as their ownership, immediately prior to such acquisition, of
the Outstanding Capital Stock and Voting Securities, as the case may be, shall
not constitute a Change of Control; or
(i) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board, provided that any individual becoming a
director subsequent to the date hereof whose election or nomination for election
by the Company's or CyberGuard's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company or CyberGuard (as such terms are
used in Rule 14a-11 of Regulation 14A, or any successor section, promulgated
under the Exchange Act); or
(ii) Approval by the shareholders of the Company or
CyberGuard of a reorganization, merger or consolidation (a "Business
Combination"), in each case, with respect to which all or substantially all
holders of the Outstanding Capital Stock and Voting Securities immediately prior
to such Business Combination do not, following such Business Combination,
beneficially own, directly or indirectly, more than 60% of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from Business
Combination; or
(iii)(a) a complete liquidation or dissolution of the
Company or CyberGuard or (b) a sale or other disposition of all or substantially
all of the assets of the Company or CyberGuard other than to a corporation with
respect to which, following such sale or disposition, more than 60% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors is then owned beneficially, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Capital Stock and Voting
Securities immediately prior to such sale or disposition in substantially the
same proportion as their ownership of the Outstanding Capital Stock and Voting
Securities, as the case may be, immediately prior to such sale or disposition.
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9. TERMINATION BY REASON OF DEATH. If Employee shall die while employed
by the Company both prior to termination of employment and during the effective
term of this Agreement, all Employee's rights under this Agreement shall
terminate with the payment of such amounts of annual Base Salary as have accrued
but remain unpaid and a prorated amount of targeted incentive bonus under the
Company's Management Bonus Program through the month in which his death occurs,
plus three additional months of the fixed salary and targeted bonus. All
benefits under Paragraph 7(b)(ii) and (iv) shall be extended to Employee's
estate as described in such Paragraphs. In addition, Employee's eligible
dependents shall receive continued benefit plan coverage under Paragraph
7(b)(iii) for three months from the date of Employee's death.
10. TERMINATION BY DISABILITY. Employee's employment hereunder may be
terminated by the Company for disability. In such event, all Employee's rights
under this Agreement shall terminate with the payment of such amounts of annual
Base Salary as have accrued but remain unpaid as of thirtieth (30th) day after
such notice is given EXCEPT that all benefits under Paragraphs 7(b)(ii), (iii),
and (iv) shall be extended to Employee as described in such Paragraphs. For
purposes of this Agreement, "disability" is defined to mean that, as a result of
Employee's incapacity due to physical or mental illness (a) Employee shall have
been absent from his duties as an officer of the Company on a substantially
full-time basis for six (6) consecutive months; and (b) within thirty (30) days
after the Company notifies Employee in writing that it intends to replace him,
Employee shall not have returned to the performance of his duties as an officer
of the Company on a full-time basis.
11. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 7(b) provides that
certain payments and other benefits shall be received by Employee upon the
termination of Employee by the Company under the circumstances described
therein. It is the intention of this Agreement that if the Company terminates
Employee other than for Cause then the payments and other benefits set forth in
Paragraph 7(b) shall constitute the sole and exclusive remedies of Employee.
12. NONCOMPETITION. At all times during Employee's employment
hereunder, and for such additional periods during which the Company is current
in its obligation to pay Employee pursuant to Paragraph 16 hereof, Employee
shall not, directly or indirectly, engage or agree to engage in any business or
enterprise or be employed by or agree to be employed by any business or
enterprise (a "Competitor"), whether as owner, operator, shareholder, director,
partner, creditor, employee, consultant, agent or in any capacity whatsoever,
that provides services or manufactures products designed to compete directly
with services or products of the Company or its parent company, or markets such
services or products anywhere in the world where the Company or its parent
company (i) is engaged in business or (ii) has evidenced an intention known to
Employee of engaging in business. Employee acknowledges that he has read the
foregoing and agrees that the nature of the geographical restrictions are
reasonable given the international nature of the Company's and CyberGuard's
business.
In the event that these geographical or temporal restrictions
are judicially determined to be unreasonable, the parties agree that these
restrictions shall be judicially reformed to the maximum restrictions which are
reasonable.
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Notwithstanding the provisions of this Paragraph 12, Employee may
accept employment with a company that would be deemed to be a Competitor of the
Company or CyberGuard so long as (i) the Competitor has had annual revenues of
at least $1 billion in each of the prior two fiscal years, (ii) the Competitor's
revenues for products and maintenance in direct competition with the Company and
CyberGuard does not exceed 50% of its total revenues and (iii) Employee's
responsibilities are solely for divisions or subsidiaries of the Competitor that
do not compete with the Company and CyberGuard. The restrictions of this Section
12 shall not apply to the ownership of less than 2% of the outstanding shares of
a publicly-traded company.
13. NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. At all times during
Employee's employment hereunder and for one year after termination or expiration
of this Agreement, Employee shall not, directly or indirectly, for himself or
for any other person, firm, corporation, partnership, association or other
entity (a) attempt to employ, employ or enter into any contractual arrangement
with any employee or former employee of the Company, CyberGuard, their
affiliates, subsidiaries or predecessors in interest, unless such employee or
former employee has not been employed by the Company, CyberGuard, their
affiliates, subsidiaries or predecessors in interest during the twelve months
prior to Employee's attempt to employ him or (b) call on or solicit any of the
actual customers of the Company or others known by Employee to be targeted
prospective customers of the Company, CyberGuard or their affiliates,
subsidiaries or predecessors in interest with respect to any matters competitive
with the business of the Company or CyberGuard.
14. CONFIDENTIALITY.
(a) NONDISCLOSURE. Employee acknowledges and agrees that the
Confidential Information (as defined below) is a valuable, special and unique
asset of the Company's and CyberGuard's business. Accordingly, except (i) in
connection with the performance of his duties hereunder, (ii) in connection with
the enforcement of this Agreement or any other agreement between Employee and
the Company or CyberGuard or (iii) as otherwise required by law, Employee shall
not at any time during or subsequent to the term of his employment hereunder
disclose, directly or indirectly, to any person, firm, corporation, partnership,
association or other entity any proprietary or confidential information relating
to the Company or CyberGuard or any information concerning the Company's or
CyberGuard's financial condition, business line, business strategy or prospects,
the Company's or CyberGuard's customers, the design, research, development,
manufacture, marketing or sale of the Company's or CyberGuard's products, or the
Company's or CyberGuard's methods of operating its business, or intellectual
property of any kind, which shall include, without limitation, inventions,
improvements, discoveries, creations, computer programs, computer hardware,
design specifications, concepts, formulas, trade secrets, ideas, processes,
know-how, methods, proprietary data, software code, source code, products,
future products, techniques, any and all derivative works therefrom and any and
all patents and copyrights therein or any improvements thereof (collectively
"Confidential Information"). Confidential Information shall not include
information which, at the time of disclosure, is known or available to the
general public by publication or otherwise through no wrongful act or failure
to act on the part of Employee.
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(b) RETURN OF CONFIDENTIAL INFORMATION. Upon termination of
Employee's employment, for whatever reason and whether voluntary or involuntary,
or at any time at the request of the Company, Employee shall promptly return all
Confidential Information in the possession or under the control of Employee to
the Company and shall not retain any copies or other reproductions or extracts
thereof. Employee shall at any time at the request of the Company destroy or
have destroyed all memoranda, notes, reports, and documents, whether in "hard
copy" form or as stored on magnetic or other media, and all copies and other
reproductions and extracts thereof, prepared by Employee and shall provide the
Company with a certificate that the foregoing materials have in fact been
returned or destroyed.
(c) BOOKS AND RECORDS. All books, records and accounts of the
Company or CyberGuard whether prepared by Employee or otherwise coming into
Employee's possession, shall be the exclusive property of the Company and shall
be returned immediately to the Company upon termination of Employee's employment
hereunder or upon the Company's request at any time.
15. INJUNCTION/SPECIFIC PERFORMANCE. Employee acknowledges that a
breach of any of the provisions of Paragraphs 12, 13 and 14 hereof would result
in immediate and irreparable injury to the Company or CyberGuard which cannot be
adequately or reasonably compensated at law. Therefore, Employee agrees that the
Company shall be entitled, if any such breach shall occur or be threatened or
attempted, to a decree of specific performance and to a temporary and permanent
injunction, without the posting of a bond, enjoining and restraining such breach
by Employee or his agents, either directly or indirectly, and that such right to
injunction shall be cumulative to whatever other remedies for actual damages to
which the Company is entitled. Employee further acknowledges that the Company
may have additional remedies set forth in other agreements that may be in effect
between Employee and the Company (including without limitation a Stock Option
Agreement between Employee and the Company) that are available to the Company in
the event of a breach of any or all of the provisions of Paragraphs 12, 13 or 14
and that nothing herein shall be deemed a waiver of such remedies set forth in
such other agreements.
16. CONSULTING ARRANGEMENT. As further consideration for Employee's
employment with the Company, Employee agrees that, following termination of
Employee's employment with the Company, he will, if so requested to do so by the
Company, enter into a consulting agreement, the terms of which will provide that
the Employee will be paid at a rate per annum equal to the rate he was being
paid as of the date of his termination. Any such request by the Company for the
Employee to enter into such consulting agreement will be given to Employee by
the Company (i) upon termination of his employment if such termination is by the
Company and (ii) within five business days of termination of his employment if
such termination is by the Employee. The term of such consulting agreement shall
be determined by the Company and included in such notice and shall be no longer
than six months. Employee shall only work that number of hours during the term
of such consulting agreement as the parties shall mutually agree in the
consulting agreement, and Employee shall provide those services pursuant to the
consulting agreement as the parties shall mutually agree in the consulting
agreement. Payments under such consulting agreement shall be made in accordance
with the normal payroll practices of Company, which, in any event shall be no
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less often than monthly. Employee further agrees that such consulting agreement
will provide that the Company may set off against or recoup from any amounts due
under the consulting agreement to the extent of any losses incurred by the
Company as a result of any breach by Employee of the provisions of Paragraphs
12, 13 and 14 hereof. The consulting agreement will provide that the Company
shall be deemed to be current in its obligations to make payments under the
consulting agreement unless the Company fails to make such payments and such
failure is not remedied after five days' written notice to the Company.
17. SEVERABILITY. Any provision in this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. SUCCESSORS. This Agreement shall be binding upon Employee and inure
to his and his estate's benefit, and shall be binding upon and inure to the
benefit of the Company and any permitted successor of the Company. Neither this
Agreement nor any rights arising hereunder may be assigned or pledged by:
Employee or anyone claiming through Employee; or by the Company, except to any
corporation which is the successor in interest to the Company by reason of a
merger, consolidation or sale of substantially all of the assets of the Company.
The foregoing sentence shall not be deemed to have any effect upon the rights of
Employee upon a Change of Control.
19. NOTICES. Any notice required or permitted to be given hereunder
shall be written and sent by registered or certified mail, telecommunicated or
hand delivered at the address set forth herein or to any other address of which
notice is given:
To the Company: c/o CyberGuard Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
To Employee: To the address listed for
Employee in the records of the Company
20. ENTIRE AGREEMENT. Subject to Paragraph 25 hereof, this Agreement
constitutes the entire agreement between the parties hereto on the subject
matter hereof and may not be modified without the written agreement of both
parties hereto.
21. WAIVER. A waiver by any party of any of the terms and conditions
hereof shall not be construed as a general waiver by such party.
22. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
a single agreement.
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23. GOVERNING LAW. This Agreement has been entered into and shall be
construed and enforced in accordance with the laws of the State of Maryland
without reference to the choice of laws principles thereof.
24. SURVIVAL. Notwithstanding the provisions of Paragraph 2, the
provisions of Paragraphs 12, 13 and 14 shall survive the expiration or early
termination of this Agreement.
25. CERTAIN INTERPRETATIONS. Employee acknowledges that he has entered
into a restrictive covenant agreement by which he has agreed to not compete
against ARCA or solicit the business or personnel of ARCA, CyberGuard or any of
their subsidiaries in connection with the sale of ARCA's business and its
goodwill to CyberGuard. Employee acknowledges that a further consideration for
the sale of the business of ARCA and its goodwill is the entering into by
Employee of this Agreement and the consulting arrangement (and the related
restrictions) described in Paragraph 16.
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IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
COMPANY:
ARCA SYSTEMS, INC.
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By:
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Title:
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EMPLOYEE:
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CyberGuard Corporation agrees to guarantee all obligations
of the Company to Employee under Sections 7 or 8 of this
Agreement which arise and accrue upon or after the
termination of this Agreement.
CYBERGUARD CORPORATION
By:
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Name:
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Title:
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