Employment Agreement - CyberGuard Corp. and Katherine K. Hutchison
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
July 1, 1996 by and between CyberGuard Corporation, a Florida corporation (the
"Company"), and Katherine K. Hutchison ("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;
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, as Vice President Corporate Development of the Company upon
the terms of and subject to this Agreement.
2. TERM. The term (the "Term") of this Agreement shall commence on July
1, 1996, and shall continue until terminated in accordance with the terms
hereof.
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
Chief Executive Officer 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 business activities 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 $90,000 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.
b. OPTION AND BONUS. In addition to salary, Employee shall be entitled
to participate in the Company's Stock Incentive Plan as adopted by the
Board of Directors of the Company on September 14, 1994 and effective on
October 8, 1994 (the "Stock Incentive Plan"). In addition, Employee shall
participate in a Management Bonus Program anticipated to be established by
the Company with an initial annual targeted bonus equal to 50% of
Employee's Base Salary (hereafter the "Management Bonus Program").
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 other key
executive employees of the Company from time to time.
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d. OTHER BENEFITS. During his employment hereunder, Employee shall be
entitled to all such other benefits, if any, that the Company may offer to
other key executive employees of the Company from time to time.
e. VACATION. Employee shall be entitled to that number of weeks'
vacation leave (in addition to holidays) in each calendar year during the
Term in accordance with the Company's vacation policy for executives as it
may be in effect from time to time. Except with respect to vacation time
unused as the result of a request by the Company to postpone a vacation,
any unused vacation from one calendar year shall not carry-over to any
subsequent calendar year.
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 Board of Directors of the Company may
terminate this Agreement for Cause. As used herein, "Cause" shall mean any of
the following: (i) an act of willful misconduct or gross negligence by Employee
in the performance of his material duties or obligations to the Company; 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), or (ii) conviction of Employee of a felony
involving moral turpitude or (iii) 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.
6. TERMINATION BY EMPLOYEE. Employee may terminate this Agreement with
Good Reason. In the event of termination by Employee for Good Reason, Employee
shall be entitled to the benefits of Paragraph 7b. of this Agreement. "Good
Reason" means:
a. A material breach of the provisions of this Agreement by the Company
(except those set forth in Paragraph 4a.) and Employee provides at least 15
days' prior 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
b. The failure of the Company to comply with the provisions of
Paragraph 4a. or to pay any amounts due under the Management Bonus Program
provisions of Paragraph 4b. for an uninterrupted 10 day period.
7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION.
a. 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 7a. shall apply. These same
provisions shall
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apply if Employee terminates his employment without Good Reason as
described in Paragraph 6.
i. SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS. The Company shall
pay in a lump sum to Employee at the time of Employee's termination such
amount of compensation due Employee for services rendered to the Company,
as well as compensation for unused vacation time and earned bonus, as has
accrued but remains unpaid. Any and all other rights granted to Employee
under this Agreement shall terminate as of the date of termination.
ii. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraphs 14 and 15 shall, at the option of the Company in its sole
discretion, continue to apply with respect to Employee for a period of up
to one year following the date of termination, so long as the Company:
(x) provides a written notice to Employee within 5 business days after
Employee's termination that the Company wishes to exercise its right to
require that Employee not compete and not solicit in accordance with
Paragraphs 14 and 15 hereof; and (y) Company thereafter pays to Employee
in periodic installments, without interest, in accordance with the
regular salary payment practices of the Company an amount equal to (.1)
the amount of Employee's annual Base Salary as in effect immediately
prior to Employee's date of termination, multiplied by (.2) the number of
months that the Company is requiring the non-competition and
non-solicitation covenants to remain in place, divided by 12. The first
such installment of Base Salary and target bonus shall be paid on or
before the delivery of the notice described in the prior sentence of this
Paragraph 7a(ii). The non-competition and non-solicitation provisions of
this Agreement shall no longer apply to Employee if the Company fails to
pay the amounts required under this Section 7a(ii) for an uninterrupted
10-day period and such failure is not cured with 5 days after written
notice of such failure is delivered to the Company.
b. 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 any other amounts by the Company to which he
is entitled.
i. SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS. On or before
Employee's last day of employment with the Company, the Company shall pay
in a lump sum to Employee as compensation for services rendered to the
Company a cash amount equal to one-half the amount of Employee's annual
Base Salary and the greater of (x) one-half the target bonus under the
Management Bonus Program as in effect immediately prior to his date of
termination or (y) the amount of the bonus under the Management Bonus
Program to which he is entitled but which remains unpaid. At the
election of the Company, the cash amount referred to in this Paragraph
7b.i. may be paid to Employee in 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.
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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 12 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 7b.iii., all benefits in this Paragraph 7b.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 7b.iii.
prior to his termination, he shall continue to contribute such amounts
for such time as these benefits continue in effect after termination.
iv. OTHER COMPENSATION. Any awards previously made to Employee under
any of the Company's compensation plans or programs and not previously
paid shall immediately vest on the date of his termination and shall be
paid on that date and included as compensation in the year paid.
v. 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 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.
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vi. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraphs 14 and 15 shall continue, beyond the time periods set forth in
such paragraphs, to apply with respect to Employee for six (6) months
following the date of termination, and at the end of such six (6) month
period, the Company shall have the right to extend the time period of
noncompetition and nonsolicitation for an additional six (6) months by
giving written notice to Employee of such extension and paying to
Employee an amount equal to one-half the amount of Employee's annual Base
Salary and one-half the target bonus under the Management Bonus Program
as in effect immediately prior to his date of termination. At the
election of the Company, the cash amount referred to in the prior
sentence of this Paragraph 7b.vi. may be paid to Employee in periodic
installments in accordance with the regular salary payment practices of
the Company, with the first such installment to be paid on or before the
delivery of the notice described in the first sentence of this Paragraph
7b.vi., and no interest shall be paid with respect to any amount paid in
installments. The noncompetition and nonsolicitation provisions of this
Agreement shall no longer apply to Employee if the Company fails to pay
the amounts required under the provisions of Paragraph 7b.i. or the first
two sentences of this Paragraph 7b.vi. for an uninterrupted 10-day period
and such failure is not cured within 5 days after written notice of such
failure is delivered to the Company.
c. The provisions of this Paragraph 7 shall apply if Employee's
employment is terminated prior to or more than one year after the
occurrence of a Change of Control (as defined in Paragraph 8c.). 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 7a. shall apply. Termination upon death, disability and
retirement are covered by Paragraphs 9, 10, and 11, 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, or of his normal retirement under
the Company's retirement plans and practices) either (i) by the Company
for any reason whatsoever or (ii) by Employee with Good Reason as provided
in Paragraph 6, then Employee shall be entitled to receive from the
Company, the following:
i. BASE SALARY. An amount equal to one and one-half the Employee's
annual Base Salary as in effect at the date of termination shall be paid
on the date of termination;
ii. TARGET BONUS. An amount equal to one and one-half the Employee's
target bonus under the Management Bonus Program for the fiscal
year in which the date of termination occurs shall be paid on the date of
termination; and
iii. OTHER BENEFITS. All benefits under Paragraphs 7b.i, 7.b.ii.,
7b.iii. 7b.iv. and 7b.v. shall be extended to Employee as described in
such
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paragraphs, except that all options and rights shall be immediately
exercisable and the period for exercise of options and rights described
in the last sentence of Paragraph 7b.ii and benefit plan coverage as
described in Paragraph 7.b.iii shall be one year.
b. NONCOMPETITION/NONSOLICITATION PERIOD. In the event of a
termination under the circumstances described in Paragraph 8a., the
provisions of Paragraphs 14 and 15 shall be without force and effect and
shall not apply to Employee.
c. For purposes of this Agreement, the term "Change of Control" shall
mean:
i. The acquisition, other than from the Company, 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 hereafter a "Person") of 30% or more of either (a) the
then outstanding shares of Capital Stock of the Company (the "Outstanding
Capital Stock") or (b) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Voting Securities"), provided, however, that
any acquisition by (x) the Company or any of its subsidiaries, or any
employee benefit plan (or related trust) sponsored or maintained by the
Company 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 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
ii. 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 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
(as such terms are used in Rule 14a-11 of Regulation 14A, or any
successor section, promulgated under the Exchange Act); or
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iii. Approval by the shareholders of the Company 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
iv. (a) a complete liquidation or dissolution of the Company or (b)
a sale or other disposition of all or substantially all of the assets of
the Company 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.
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 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 7b.ii., 7b.iv and 7b.v. 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 7b.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 7b.ii, 7b.iii,
7b.iv. and 7b.v. shall be extended to Employee as described in such paragraphs.
In addition, the noncompetition and nonsolicitation provisions of Paragraphs
14 and 15 shall continue to apply to Employee for a period of one year from the
date of termination.
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
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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. RETIREMENT. Retirement by Employee, whether occurring as a result of
a voluntary termination by Employee or an involuntary termination as the result
of reaching the age retirement as set forth in the Company's retirement
policies, shall be treated as a voluntary termination without Good Reason and
the provisions of Paragraph 7a. shall apply. If during the Term or any
extension thereof, the Company adopts a retirement plan with respect to
executive officers of the Company, Employee shall have the right to participate
in such policy and the provisions of such policy shall supersede the provisions
of the preceding sentence.
12. INDEMNIFICATION. If litigation shall be brought, in the event of
breach or to enforce or interpret any provision contained herein, the
non-prevailing party shall indemnify the prevailing party for reasonable
attorney's fees (including those for negotiations, trial and appeals) and
disbursements incurred by the prevailing party in such litigation, and hereby
agrees to pay prejudgment interest on any money judgment obtained by the
prevailing party calculated at the generally prevailing NationsBank of Florida,
N.A. base rate of interest charged to its commercial customers in effect from
time to time from the date that payment(s) to him should have been made under
this Agreement.
13. (Omitted Intentionally)
14. NONCOMPETITION.
a. At all times during Employee's employment hereunder, and for such
additional periods as may otherwise be set forth in this Agreement in
reference to this Paragraph 14, Employee shall not, directly or indirectly,
engage in any business, enterprise or employment, whether as owner,
operator, shareholder, director, partner, creditor, consultant, agent or
any capacity whatsoever that manufactures products designed to compete
directly with products of the Company or markets such products anywhere in
the world where the Company (i) is engaged in business or (ii) has
evidenced an intention 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 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.
b. Notwithstanding the provisions of the preceding Paragraph 14a.,
Employee may accept employment with a company that would be deemed to be a
competitor of the Company as described in the previous sentence
("Competitor"), 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 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.
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15. NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. At all times during
Employee's employment hereunder, or for such additional periods as may
otherwise be set forth in this Agreement in reference to this Paragraph 15,
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, its affiliates, subsidiaries or predecessors
in interest, unless such employee or former employee has not been employed by
the Company, its 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 or targeted prospective customers of the Company or
its affiliates, subsidiaries or predecessors in interest with respect to any
matters related to or competitive with the business of the Company.
16. 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 business. Accordingly, except in connection
with the performance of his duties hereunder, 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 any information concerning the Company's
financial condition or prospects, the Company's customers, the design,
development, manufacture, marketing or sale of the Company's products or
the Company's methods of operating its business (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 act or failure to act on the
part of Employee.
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 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.
17. INJUNCTION/SPECIFIC PERFORMANCE SETOFF. Employee acknowledges that a
breach of any of the provisions of Paragraphs 14, 15 or 16 hereof would result
in immediate and irreparable injury to the Company 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,
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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 agrees that the Company may
set off against or recoup from any amounts due under this Agreement to the
extent of any losses incurred by the Company as a result of any breach by
Employee of the provisions of Paragraphs 14, 15 or 16 hereof.
18. 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.
19. 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.
20. CONTROLLING LAW. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of Florida.
21. 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: CyberGuard Corporation
2101 West Cypress Creek Road
Fort Lauderdale, Florida 33309
Attention: President
To Employee: _____________________________
_____________________________
_____________________________
22. ENTIRE AGREEMENT. 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.
23. 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.
24. 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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25. INTERPRETATION. In the event of a conflict between the provisions of
this Agreement and any other agreement or document defining rights and duties
of Employee or the Company upon Employee's termination, the rights and duties
set forth in this Agreement shall control.
26. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 7b. provides that certain
payments and other benefits shall be received by Employee upon the termination
of Employee by the Company other than for Cause and states that these same
provisions shall apply if Employee terminates his employment for Good Reason.
It is the intention of this Agreement that if the Company terminates Employee
other than for Cause (and other than as a consequence of Employee's death,
disability or normal retirement) or if Employee terminates his employment with
Good Reason, then the payments and other benefits set forth in Paragraph 7b.
shall constitute the sole and exclusive remedies of Employee.
27. SURVIVAL. Notwithstanding the provisions of Paragraph 2, the
provisions of Paragraphs 14, 15, and 16 shall survive the expiration or early
termination of this Agreement.
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IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
COMPANY:
CYBERGUARD CORPORATION
By:
Its:
EMPLOYEE:
Katherine K. Hutchison
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