Severance Agreement - CyberGuard Corp. and Terrence A. Zielinski
February 26, 2001
Mr. Terrence A. Zielinski
PO Box 9017
Coral Springs, FL 33075
Dear Terry:
This letter sets forth the agreement ("Agreement") between you and CyberGuard
Corporation ("CyberGuard" or "Company") regarding your retirement from the
Company. We agree that your last day is February 28, 2001 (for the purposes of
this Agreement, "Termination Date").
1. SALARY UNTIL TERMINATION DATE. Prior to the Termination Date, you will
continue to be paid your regular salary, and this Agreement shall have no
effect upon those payments.
2. SEVERANCE PAYMENTS AFTER TERMINATION DATE. After the Termination Date,
CyberGuard will pay you an aggregate amount of $55,211.60 (less tax
withholding), in accordance with the regular payroll practices of the
Company, as though you had continued to work for CyberGuard through June
30, 2001. No bonus will be paid, and you acknowledge that none is owed.
3. ACCRUED PAID-TIME-OFF. The total amount of accrued paid-time-off pay to
which you will be entitled as of your Termination Date is $29,203.45 (less
tax withholding).
4. NET AMOUNT PAYMENT. The total amount payable to you after the Termination
Date (before withholding for taxes) is $84,415.05 (representing the
aggregate of the amounts described in paragraphs 2 and 3 above) and will be
payable as follows: (1) the $29,203.45 (less tax withholding) payment under
paragraph 3 will be paid to you in the final paycheck you will receive as
an employee of CyberGuard; and (2) the $55,211.60 (less tax withholding)
payment under paragraph 2 will be paid to you in approximately equal
payments, in accordance with CyberGuard's regular payroll schedules and
practices, beginning after the effective date of this Agreement.
5. STOCK OPTIONS. Your option to purchase an aggregate of 150,000 shares of
CyberGuard Common Stock at $1.31 per share is fully vested and exercisable,
and we agree that your option to purchase an aggregate of 25,000 shares at
$6.50 per share of CyberGuard Common Stock is fully vested and immediately
exercisable as of the Termination Date (collectively, "Options"). The
Options will remain exercisable through June 30, 2003, or the Options'
respective expirations, whichever comes first.
6. WARRANT. Your rights under the Common Stock Purchase Warrant issued to you
by CyberGuard on August 26, 1999 ("Warrant") will remain in full force and
effect, and will be unaffected by this Agreement.
7. INSURANCE. Your coverage for insurance under CyberGuard plans (including
medical, dental and life) will remain in place until your Termination Date.
If you wish to continue the coverage after your Termination Date, you will
pay the full amount of the premiums (including any incremental expenses in
connection with pre-existing conditions and increases in premiums as
permitted or required under COBRA). A separate notice under COBRA will be
sent to you from the CyberGuard Personnel Department regarding insurance.
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8. 401-k PLAN. Your participation in the CyberGuard 401-k Plan will cease at
the Termination Date. Upon request, you will sign an appropriate letter
addressed to the 401-k Plan administrators directing that no further
payments be accepted on your behalf. Your vesting in the 401-k plan shall
be determined as of the Termination Date, unless the 401-k Plan or ERISA
requires otherwise.
9. RETURN OF EQUIPMENT. You agree to return, promptly upon request, any
CyberGuard equipment that you may have (such as a notebook or other
computers), and CyberGuard credit cards and key cards.
10. RESIGNATION. We agree that your resignation as Chief Financial Officer,
Vice President of Finance, and Treasurer of CyberGuard and from any other
officer and director position that you may have held at CyberGuard and/or
its subsidiaries shall be effective as of February 13, 2001.
11. NO OTHER RIGHTS TO COMPENSATION. You acknowledge that once the payments set
forth in paragraph 4 of this letter are paid in full, you will have been
paid in full all amounts due or owed to you in the nature of salary, bonus,
severance, vacation pay, personal leave, sick leave, paid-time-off, living
expenses and other compensation of any kind whatsoever, for all services
rendered to CyberGuard as employee or in any other capacity whatsoever. You
also acknowledge that other than the Options and the Warrant, CyberGuard
has granted you no other options, warrants, restricted stock or rights of
any kind to acquire capital stock of CyberGuard.
12. CERTAIN COMMUNICATIONS. CyberGuard and you agree that neither of us will
say, write or communicate in any manner to any person or entity anything
substantially derogatory about the other, regardless of the truth or
falsity of the information. Of course, nothing in this section shall be
construed to prevent either party from testifying truthfully under oath if
compelled to do so by court order or other legal compulsion. In this
connection, for purposes hereof, "CyberGuard" means and includes CyberGuard
Corporation, and its current officers, directors, employees, affiliates and
representatives.
13. NON-SOLICITATION. You agree that for six (6) months after the Termination
Date you will not, without the prior written consent of CyberGuard,
directly or indirectly, for yourself 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 CyberGuard, its affiliates, subsidiaries or
predecessors in interest, unless such employee or former employee has not
been employed by CyberGuard, its affiliates, subsidiaries or predecessors
in interest during the 120 days prior to your attempt to employ him, or (b)
call on or solicit any of the actual or currently targeted prospective
customers of CyberGuard for the purpose of offering any product or service
that is in direct competition with the products or services of CyberGuard.
14. NON-COMPETITION. You agree that for six (6) months after the Termination
Date, you shall not, directly or indirectly, be employed by, act as a
consultant or contractor for, be involved in a venture with, or otherwise
engage in any business enterprise or employment, with any of the following
companies: Axent Technologies, Inc., Check Point Software Technologies,
Inc, Fore Systems, Inc., Network Associates, Inc., Secure Computing Corp.,
or Network-1 Security Solutions, Inc. In the event that these geographical
or temporal restrictions are judicially determined to be unreasonable, we
agree that these restrictions shall be judicially reformed to the maximum
restrictions which are reasonable.
15. CONFIDENTIALITY; TERMINATION OF THE EMPLOYMENT AGREEMENT. Paragraph 16
(governing confidential information) of the Employment Agreement between
you and the Company dated September 8, 1998 ("Employment Agreement"), shall
remain in full force and effect for two years from the date hereof.
Otherwise, in all other respects, the Employment Agreement is hereby
terminated and shall be of no further force or effect.
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16. INJUNCTION/SPECIFIC PERFORMANCE SETOFF. You acknowledge that a breach of
any of the provisions of Sections 13, 14, or 15 hereof would result in
immediate and irreparable injury to the Company which cannot be adequately
or reasonably compensated at law. Therefore, you agree 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 you or your 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. You further agree 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 you of the provisions
of Sections 13, 14, or 15 hereof.
17. RELEASE. In order to clearly define the intent of this termination
arrangement, the following release provisions will become effective as
described below. You specifically acknowledge and agree as follows:
(a) You have been given at least twenty-one (21) full days within
which to consider this Agreement, including the release set forth
below;
(b) You are advised that you have the right and may consult with an
attorney prior to executing this Agreement and acknowledge the
opportunity to consult an attorney;
(c) You have seven (7) days following the execution of this Agreement
to revoke the Agreement and the Agreement will not become
effective or enforceable until after this seven (7) day period has
expired;
(d) You recognize that you are specifically releasing, among other
claims, any claims under the Age Discrimination in Employment Act
of 1967 and all amendments thereto;
(e) You entered into this Agreement voluntarily and on your free will;
(f) You are not waiving rights or claims that may arise after the date
this Agreement is executed;
(g) In consideration of the execution and delivery of this Agreement,
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by you ("You"), You
hereby fully and forever release and discharge CyberGuard and its
agents, officers, directors, employees, successors and assigns, of
and from any and all responsibilities, duties, obligations,
claims, debts, sums of money, accounts or causes of action or
actions, costs, losses, damages or liabilities of whatsoever
character, nature, kind or designation in law or in equity,
absolute or contingent, matured or unmatured, suspected or
unsuspected, known or unknown, which You or anyone claiming under,
by or through You now has, ever had or could ever have or become
entitled to assert against CyberGuard or its agents, officers,
directors, employees, successors or assigns by reason of any
conduct, matter, cause, or thing whatsoever; without limiting the
generality of the foregoing release, You hereby release any claims
for: (i.) salary, bonus, accrued vacation, paid-time-off, benefits
or compensation of any kind whatsoever whether arising as an
employee or otherwise; (ii.) violations of any federal, state or
municipal employment practices laws, rules or regulations,
including without limitation laws, rules or regulations regarding
discriminatory practices, including without limitation, age
discrimination; and (iii.) breaches of any agreements of any kind
whatsoever between You and CyberGuard. If at anytime CyberGuard
fails to make the payments required in paragraphs 1, 2, 3 and 4
above, You may give CyberGuard written notice of Your intention to
cancel this release, at which time CyberGuard shall have ten days
to make any delinquent payments to cure the default, or this
release shall terminate. This release shall not affect Your rights
or CyberGuard's obligations under the Warrant, or Your rights to
exercise the Options.
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18. MISCELLANEOUS. With the exception of the Warrant, this Agreement
constitutes the entire agreement between us, and all prior agreements,
understandings, writings and commitments are terminated and merged into
this Agreement. This Agreement shall not be amended except by the written
agreement by CyberGuard and you. This Agreement shall be binding upon, and
shall inure to the benefit of, each of us, and our permitted respective
heirs, legal representatives, successors and assigns. This Agreement may be
executed in counterparts, all of which together shall constitute one and
the same instrument. Words such as "hereof", "hereunder", "hereby' "herein"
and similar words refer to this Agreement as a whole and not to any
particular section of this Agreement. This Agreement shall be governed by,
and construed and enforced in accordance with the laws of the State of
Florida, without giving effect to the choice of law provisions thereof. Any
and all disputes arising hereunder shall be decided in the courts of the
State of Florida or the federal courts located therein. Each of us agrees
to submit to personal jurisdiction and to waive any objection as to venue
in Broward County, Florida.
If you agree with the terms of this letter, please indicate by signing in the
space provided below.
Sincerely,
Scott J. Hammack
Chief Executive Officer
CyberGuard Corporation
AGREED AND ACCEPTED THIS 28TH DAY OF FEBRUARY, 2001.
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Terrence A. Zielinski
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