Employment Agreement - Cylink Corp. and Pamel E. Drew
EMPLOYMENT AGREEMENT
Agreement made as of the 1st day of December, 2000 (the "Effective
Date"), by and between Cylink Corporation, a California corporation with its
principal place of business at 3131 Jay Street, Santa Clara, California 95054
(the "Company"), and Pamela E. Drew, residing at 19369 Greenwood Avenue,
Cupertino, CA (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to employ Executive as Vice President of
Human Resources and Workplace Environment, and Executive is willing to serve in
such capacity; and
WHEREAS, the Company and Executive desire to set forth the terms and
conditions of such employment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Company and Executive agree as follows:
Employment.
1.1. The Company hereby agrees to employ Executive, and Executive
agrees to be employed by the Company, on the terms and conditions herein
contained, as of the Effective Date, as its Vice President of Human Resources
and Workplace Environment, and in such other executive capacities assigned by
the Chief Executive Officer or the Vice President and General Counsel which are
not inconsistent with Executive's duties. Executive's duties, authority and
responsibilities shall be commensurate with those of a
<PAGE>
similar position for another company similar in size and business. During the
term of Executive's employment, he shall be based at the Company's principal
office; provided, however, that Executive shall be required to travel as
reasonably necessary in connection with the official business of the Company.
Executive shall maintain his permanent residence within the surrounding
community. If so requested by the Chief Executive Officer, Executive shall also
serve as an officer of the Company's affiliated entities without additional
compensation.
1.2. The Executive shall devote substantially all of his business time,
energy, skill and efforts to the performance of his duties and shall faithfully
serve the Company to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner. The foregoing shall not prevent Executive
from participating in not-for-profit activities or from managing his passive
personal investments provided that these activities do not materially interfere
with Executive's obligations hereunder.
2. Term of Employment.
Executive's employment under this Agreement shall be for a term (the
"Employment Term") commencing on the "Effective Date" and terminating, unless
otherwise terminated earlier as provided in this Agreement, on December 1, 2005
(the "Original Employment Term"), provided that the Employment Term shall be
extended (subject to earlier termination as provided in this Agreement) for
additional one (1) year periods (the "Additional Terms"), unless, at least
thirty (30) days prior to the end of the Original Employment Term or any
Additional Term, the Company or the Executive has
2
<PAGE>
notified the other in writing that the Employment Term shall terminate at the
end of the then current term. If and when this Agreement is so extended, the
term "Employment Term" used in this Agreement shall include all such extensions.
The Executive's obligations concerning the Company's Inventions, Confidential
Information, not to compete or solicit the Company's customers or employees, and
the Company's obligations to provide indemnification, as provided elsewhere in
this Agreement, shall survive and remain in effect notwithstanding the
termination of the Employment Term or a breach of this Agreement by either the
Company or the Executive.
3
<PAGE>
3. Compensation.
3.1. As compensation for his services under this Agreement, the Company
shall pay Executive an annual salary of $150,000 ("Base Salary"). Such Base
Salary shall be payable in equal installments (not less frequently than monthly)
and subject to withholding in accordance with the Company's normal payroll
practices.
3.2. Executive's Base Salary may be increased from time to time by the
Chief Executive Officer, but solely in his discretion and not as an implied
obligation of this Agreement. Executive's Base Salary may also be decreased from
time to time by the Chief Executive Officer in his sole discretion based on his
assessment of the Executive's performance or changes in the scope of Executive's
responsibilities, provided that Executive will be given written notice and a
minimum of ninety (90) days to cure any such assessment which, in the Chief
Executive Officer's discretion, warrants such a reduction.
3.3. In addition to the Base Salary, for each calendar year completed
during the Employment Term, the Company shall pay to Executive an annual bonus
of up to 25% of Base Salary based, in part, on achievement of performance goals
which shall be determined by the Vice President and General Counsel or the Chief
Executive Officer in consultation with the Executive. The actual bonus may vary
in the sole discretion of the Vice President and General Counsel or the Chief
Executive Officer based on their assessment of the Executive's performance (and
subject to any Company austerity plans).
4
<PAGE>
3.4. The Company shall reimburse Executive for all reasonable expenses
incurred by his in the course of performing his duties under this Agreement
which are consistent with the Company's then current policies with respect to
travel, entertainment and other business expenses, subject to the Company's
requirements concerning reporting and documentation of such expenses.
4. Benefits.
4.1. During the Employment Term, Executive shall be entitled to (i) all
benefits, if any, which are generally provided from time to time by the Company
to its senior executive officers, including, without limitation, (i) any life,
medical and disability insurance plans, (ii) incentive, profit-sharing, deferred
compensation and similar such plans, subject to: (A) the Executive's
satisfaction of the eligibility requirements, if any, and (B) with due credit
for the minimum annual bonus already provided under this Agreement, and (iii)
all other benefits provided under this Agreement.
5. Stock Options.
5.1. The Compensation Committee of the Board (the "Compensation
Committee"), or its delegee, authorized granting to Executive on December 1,
2000, options to purchase 30,000 shares of Company common stock at an exercise
price of $3.44 per share, pursuant and subject to the Company's 1994 Flexible
Stock Incentive Plan (the "Plan"). Such options shall be non-qualified or
incentive stock options, or a combination thereof as determined by the Plan's
Administrator. The terms of the
5
<PAGE>
options, as more fully set forth in the option agreement annexed hereto as
Attachment A, and specifically modified by this Section 5, shall provide that
(i) they shall be for a maximum six (6) year term, and (ii) shall vest and
become exercisable ratably over a four (4) year period on the last day of each
month during such period, provided the Executive is employed by the Company on
each vesting date.
5.2. Furthermore, in the event of a "Corporate Transaction" or "Change
In Control" during the Term of this Agreement, the Executive will be entitled to
vesting of a certain percentage of all of the Executive's then unvested options
(the "Accelerated Options") under all option agreements granted during the
period of his employment, subject to the provisions of this Section 5, with the
percentage being determined as follows:
5.2.1. with respect to each grant of options issued to Executive, if
the Corporate Transaction or Change in Control occurs on or
after one year from the Effective Date, the Accelerated
Options shall equal 100% of the Executive's then unvested
options under each such grant.
5.2.2. with respect to each grant of options issued to Executive, if
the Corporate Transaction or Change in Control occurs within
less than one year from the Effective Date, the Accelerated
Options shall equal 50% of the Executive's then unvested
options under each such grant.
5.3. In the event of a "Corporate Transaction" the Accelerated Options
shall fully vest immediately prior to closing unless the Company's successor in
interest, or its parent, offers to:
6
<PAGE>
5.3.1. either (i) assume the Executive's Accelerated Options in
accordance with Section 11 of the Plan, or (ii) replace them
with equivalent options, having the same vesting schedule as
the original grant by the Company, to purchase publicly traded
shares in the successor corporation or its Parent by
exchanging them at the same rate of conversion offered to the
Company's common shareholders in the Corporate Transaction,
and
5.3.2. provided further that the successor in interest agrees to
fully vest all such assumed or exchanged Accelerated Options
on the earlier of: (i) the first anniversary of such Corporate
Transaction, or (ii) upon termination of the Agreement by the
Company or its successor in interest if such termination
occurs either without good Cause or by the Executive for Good
Reason.
5.4. In the event of a Change In Control, the Accelerated Options shall
vest on the earlier of: (i) the first anniversary of such Change In Control, or
(ii) upon termination of the Agreement by the Company or its successor in
interest if such termination occurs either without good Cause or by the
Executive for Good Reason. For purposes of the Agreement, the terms "Corporate
Transaction" and "Change in Control" shall have the definitions of the Plan,
except that a "Corporate Transaction" shall also include the acquisition of more
than 80% of the Company's outstanding securities by any entity or related group
of entities.
6. Vacation.
During the Employment Term, Executive shall be entitled to four (4)
weeks paid
7
<PAGE>
vacation in each full calendar year (prorated for any partial year) to be taken
at such times as mutually agreed by the Executive and the Chief Executive
Officer.
7. Termination.
7.1. Executive's employment under this Agreement shall terminate prior
to expiration of the Employment Term (including any Additional Terms which may
be in effect) upon the occurrence of any of the following events:
7.1.1. Automatically on the date of Executive's death.
7.1.2. Upon written notice by the Chief Executive Officer to the
Executive for Cause. "Cause" shall mean (A) the Executive
being convicted of (or pleading nolo contendere to) a felony
(other than a traffic-related offense); (B) the barring of the
Executive by any regulatory authority from holding his
positions or any limitations imposed on the Company by any
regulatory agency if the Executive continued to hold his
positions; (C) willful refusal by the Executive to attempt to
properly perform his material obligations under this
Agreement, or attempt to follow any direction of the Chief
Executive Officer consistent with this Agreement, provided the
refusal to follow a direction shall not be Cause if the
Executive in good faith believes that such direction is not
legal or is contrary to a specific provision of published
Professional Standards applicable to Executive's duties, and
promptly notifies the Company's General Counsel in writing of
such belief; (D) the Executive's willful misconduct or
material gross negligence with regard to
8
<PAGE>
the business, assets or employees of the Company or its
affiliated entities (including as willful misconduct, without
limitation, the Executive's willful breach of any fiduciary
duty he may owe to the Company or its affiliates under
applicable law or this agreement but not de minimis personal
use of Company assets or reasonable good faith expense account
disputes), (E) the Executive's theft, dishonesty or fraud with
regard to the Company or its affiliates which is intended to
enrich the Executive or another person or entity but not de
minimis personal use of Company assets or reasonable good
faith expense account disputes, (F) the Executive's inability
to competently perform his assigned duties to the satisfaction
of the Chief Executive Officer or the General Counsel of the
Company, or (G) any other material breach by the Executive of
this Agreement that remains uncured for thirty (30) days after
written notice thereof is given to the Executive. During any
period in which the Executive is charged with committing a
crime covered by (A) above, the Company may suspend Executive
from his titles, duties and authority herein pending
resolution of his status under applicable law; such suspension
shall be with pay for up to six (6) months and thereafter
shall be without pay. In the event of any Corporate
Transaction or Change in Control, subsections (F) and (G)
shall be deemed eliminated and without force or effect.
7.1.3. Upon written notice by the Chief Executive Officer to the
Executive, if the
9
<PAGE>
Executive (as determined by the Chief Executive Officer in
good faith) fails to regularly perform the material duties
hereunder by reason of mental or physical illness or
incapacity for an aggregate period of more than 180 days
during any 365 day period (a "Disability"), provided that,
during the Employment Term prior to such termination, the
Company's obligations hereunder shall be reduced by any
payments being received by Executive under any long-term
disability program.
7.1.4. Upon written notice by the Executive to the Chief Executive
Officer for Good Reason stating with specificity the details
of the Good Reason, if the stated Good Reason is not cured
within twenty (20) days of the giving of such notice. "Good
Reason" shall mean any material breach of any provision of
this Agreement by the Company, including but not limited to
(i) any reduction in Executive's duties or responsibilities as
Vice President of Human Resources and Workplace Environment
(other than those duties which may no longer be required if
the Company ceases to be a publicly traded company) or (ii)
any demand that he relocate his principal residence beyond any
of the counties immediately adjacent to San Francisco Bay,
without his consent. Any notice for Good Reason shall be given
within ninety (90) days of the later of (i) the occurrence of
the triggering event, or (ii) the date upon which Executive
could be reasonably expected to know of such event.
10
<PAGE>
7.1.5. Immediately upon written notice to the Executive by the Chief
Executive Officer without Cause.
7.1.6. Upon the voluntary termination by the Executive without Good
Reason upon thirty (30) days prior written notice to the
Company (which the Company may, in its sole discretion, make
effective earlier). A notice by Executive of non-renewal of
the Employment Term shall be deemed a voluntary termination by
Executive.
7.2. Upon such earlier termination of the Employment Term, the
Executive shall be promptly paid (i) any unpaid salary and accrued vacation
through his date of termination, (ii) a prorated portion of his unpaid annual
bonus, as determined by the Chief Executive Officer in accordance with this
Agreement, for the calendar year of his termination, (iii) reimbursed for any
expenses incurred in connection with the business of the Company prior to his
date of termination which he would be otherwise entitled to in accordance with
the Company's policies on the reimbursement of business expenses, and (iv)
receive any benefits or fringes due under any benefit or fringe plan or
arrangement in accordance with the terms of said plan or arrangement due for the
period prior to such termination.
7.3. In addition, if the termination is by the Company without Cause,
or by the Executive for Good Reason, as provided above, and prior to the
Executive's sixty-fifth birthday, the Executive shall receive in full settlement
of all amounts owed his, provided he signs a release running to the Company and
its related entities and their respective
11
<PAGE>
officers, directors and employees of all claims relating to his employment and
termination thereof (other than any right to indemnification under the Company's
Articles of Incorporation or By-Laws or the Indemnification Agreement annexed as
Attachment B hereto, which shall survive) in such form as reasonably requested
by the Company:
7.3.1. Thirteen (13) biweekly installments of severance pay each in
an amount equal to one-twenty-sixth of the then sum of his
Base Salary and annual bonus, based on the amount paid for
service during the prior six month period (or, in the event of
a corporate austerity program applied to Executive together
with other officers of the Company, then the amount that
otherwise would have been paid in accordance with Section
3.3), pro rated if necessary, and subject to the offset of any
amounts due, and
7.3.2. payment by the Company of the premiums for Executive's and his
dependents' COBRA coverage for the Company's health insurance
plan that generally applies to executives for the period in
which Executive is receiving severance pursuant to this
Agreement or, if earlier, until Executive and his dependents
cease to be eligible for such COBRA coverage. The Company's
payment obligations under this Section (other than those in
the first sentence) shall immediately cease in the event
Executive materially breaches any of his obligations under
this Agreement concerning the Company's Inventions,
Confidential Information, and not to compete
12
<PAGE>
or solicit the Company's customers or employees.
7.3.3. If the Employment Term ends early on account of Disability,
Executive shall be entitled to receive only such amounts as he
otherwise be entitled to under any disability policy sponsored
by the Company in accordance with this Agreement.
7.4. If the Employment Term ends early pursuant to this Section 7 for
any other reason, Executive shall cease to have any rights to salary, bonus or
benefits other than: (i) salary or bonus which has accrued but is unpaid as of
the end of the Employment Term, and (ii) to the limited extent provided in any
benefit or equity plan or arrangement in which Executive has participated as an
employee of the Company, any benefits or rights which by their specific terms
extend beyond termination of Executive's employment.
7.4.1. All aforesaid amounts in this Section shall be subject to
required withholding. The Company and its affiliated entities
shall have no other obligations to the Executive upon a
termination except as specifically provided in this Agreement.
8. No Duty to Mitigate/Set-Off.
Except as specifically stated in this Agreement, the Company's
obligation to make any payments to the Executive shall not be affected by any
set-off, counterclaim, recoupment, defense, or other claim, right or action
which the Company may have against the Executive or others. The Company agrees
that if Executive's employment
13
<PAGE>
with the Company is terminated during the Employment Term, Executive shall not
be required to seek other employment or to attempt in any way to reduce any
amounts payable to Executive by the Company pursuant to this Agreement. Further,
the amount of any payment or benefit provided for in this Agreement shall not be
reduced by any compensation earned by Executive or benefit provided to Executive
as the result of employment by another employer or otherwise. Any amounts due
under Section 7 are inclusive, and in lieu of, any amounts payable under any
other salary continuation or cash severance arrangement of the Company. To the
extent any such payments are made to Executive under any other salary
continuation or cash severance arrangement, such payments shall be offset from
the amount due Executive under Section 7.
9. Inventions and Other Intellectual Property.
The Company and Executive agree to promptly execute the Proprietary
Information and Invention Agreement, annexed hereto as Attachment C, and any
revised versions which are subsequently issued by the Company as part of its
standard terms of employment.
10. Confidential Information.
Executive acknowledges that the trade secrets, know how, and
proprietary information and observations concerning the business or affairs of
the Company, or any of its subsidiaries or affiliates or any predecessor thereof
(collectively "Confidential Information"), obtained by his while employed by the
Company pursuant to this
14
<PAGE>
Agreement are the property of the Company or such subsidiary or affiliate.
Executive agrees that he shall not disclose to any unauthorized person or use
for his own account any Confidential Information without the prior written
consent of the Chief Executive Officer unless and except to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Executive's acts or omissions to act. If
Executive receives legal process, he may comply with it provided he promptly
notifies the Company and diligently cooperates with the Company in obtaining a
protective order. Executive shall deliver to the Company at the termination of
the Employment Term, or at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential Information
or business of the Company or any of its subsidiaries or affiliates which he may
then possess or have under his control.
11. Non-Compete, Non-Solicitation.
11.1. Executive acknowledges that in the course of his employment with
the Company pursuant to this Agreement he will become familiar with the
Company's Confidential Information and that his services will be of special,
unique and extraordinary value to the Company.
11.2. During the Employment Term and for one (1) year thereafter,
Executive shall not enter into Competition with the Company or its affiliates to
the extent such
15
<PAGE>
Competition requires Executive to divulge, disclose or communicate to any third
party, or make use of, any Company Confidential Information. For purposes of
this Agreement, "Competition" shall mean participating, directly or indirectly,
as an individual proprietor, partner, officer, employee, director, joint
venturer, lender, consultant or in any capacity whatsoever (within the United
States or in any foreign country where the Company or its affiliates do
business) in a business which develops or markets goods, services or intangible
property which is similar to any of those marketed or developed by the Company
or its affiliates; provided, however, that such participation shall not include
(i) the mere ownership of not more than two percent (2%) of the total
outstanding stock of a publicly held company, (ii) the performance of services
for any enterprise to the extent such services are not performed, directly or
indirectly, for a business in the aforesaid competition, (iii) any activity
engaged in with the prior written approval of the Chief Executive Officer, or
(iv) Executive's employment by a non Competitive division (or other business
unit) of a company which is in Competition with the Company so long as Executive
is not involved with the competitive division (or other business unit).
Notwithstanding anything else in this Section to the contrary, subsequent to the
termination of Executive's employment hereunder, Executive may, in his sole
discretion, passively invest in any entity, provided Executive does not divulge,
disclose or communicate any Company Confidential Information to such company or
its affiliates, employees, officers, consultants, directors, lenders, or
investors and further provided Executive does not render services to such
company or otherwise violates this
16
<PAGE>
Section (other than by making such passive investments).
11.3. During the Employment Term and for two (2) years thereafter,
Executive shall not directly or indirectly solicit for Competitive products or
induce any customer of the Company or its affiliates to terminate, or otherwise
to cease, reduce, or diminish in any way its business relationship with the
Company or its affiliates.
11.4. During the Employment Term and one (1) year thereafter, Executive
shall not recruit, solicit or induce any nonclerical employees of the Company or
its affiliates to terminate their employment or otherwise cease their business
relationship with the Company or its affiliates, or hire or assist another
person or entity to hire any nonclerical employee of the Company or its
affiliates. Executive agrees not to circumvent this prohibition by hiring any
such employee within six (6) months after the employee terminates his employment
with the Company or its affiliates. Notwithstanding the foregoing, if requested
by any entity with which Executive is not affiliated, Executive may serve as a
reference for any person who at the time of the request is not an employee of
the Company or any of its affiliates.
11.5. If, at the time of enforcement of this Section, a court holds
that the restrictions stated herein are unreasonable under circumstances then
existing, the parties agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period,
scope or area and that the court shall be allowed to revise the restrictions
contained herein to cover the maximum
17
<PAGE>
period, scope and area permitted by law.
12. Refund Of Benefits.
In the event Executive is in breach of Section 11 ("Non-Compete,
Non-Solicitation"), or such modified version as may be required by law,
Executive will relinquish to the Company:
12.1. all stock options and other benefits under any stock incentive
plan, including the Options granted under this Agreement and Attachment "A",
which vested in the Executive's interest during the six months preceding the
last day of Executive's employment by the Company. In the event Executive sells
or otherwise transfers any such Options, Executive will refund to the Company
the amount of the gross economic value realized by Executive.
12.2. all bonus payments, or any pro rata portions thereof, which were
paid or otherwise owed to Executive for his services rendered during the six
months preceding the last day of Executive's employment by the Company.
12.3. all severance payments calculated on the basis of salary, bonus
or both.
12.4. The relinquishment of the foregoing benefits in accordance with
this Section shall not limit or otherwise preclude all other rights and remedies
of the Company due to the Executive's breach of this Agreement.
13. Enforcement.
Because Executive's services are unique and because Executive has
access to Confidential Information of the Company and its affiliates, the
parties hereto agree that
18
<PAGE>
money damages, while not waived, would be an inadequate remedy for any breach of
this Agreement. Therefore, in the event a breach or threatened breach of this
Agreement, the Company or its successors or assigns may, in addition to other
rights and remedies existing in their favor, including the award of money
damages, apply to any court of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce, or prevent any violations
of, the provisions hereof (without posting a bond or other security).
14. Indemnification.
Executive shall be entitled to be indemnified for his activities as an
officer to the full extent provided in the Articles of Incorporation and By-Laws
of the Company and in accordance with the Indemnification Agreement annexed as
Attachment B hereto, which the Company and Executive agree to promptly execute.
In addition, the Company shall cover Executive under Directors and Officers
Liability Insurance during the Employment Term in the same amount and to the
same extent as the Company covers its other officers.
15. Executive Representations.
Executive represents and warrants to the Company that (i) the
execution, delivery and performance of this Agreement by Executive does not and
will not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which Executive is a party
or by which he is bound, (ii)
19
<PAGE>
except with respect to agreements which have been furnished to the Company and
relate primarily to confidentiality, intellectual properties and/or ethical
conduct entered into between Executive and his former employer(s), Executive is
not a party to or bound by any employment agreement, change in control
agreement, non-compete agreement or confidentiality agreement with any other
person or entity, (iii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of Executive,
enforceable in accordance with its terms, (iv) Executive is a United States
citizen or a lawfully resident alien entitled to work within the United States,
and (v) Executive will in performing his duties not utilize any confidential
information of any other person or entity.
16. Entire Agreement; Modification.
This Agreement, and all documents incorporated herein, constitute the
full and complete understanding of the parties hereto and will supersede all
prior agreements and understandings, oral or written, with respect to the
subject matter hereof. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by either party, or anyone acting on behalf of either party, which are
not embodied in this Agreement, and that no other agreement, statement or
promise not contained in this Agreement shall be valid or binding. This
Agreement may not be modified or amended except by an instrument in writing
signed by the party against whom or which enforcement may be sought.
20
<PAGE>
17. Survival.
The provisions of this agreement which by their terms imply
continuation beyond the end of the Employment Term shall survive notwithstanding
any termination of the Employment Term.
18. Severability.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms of provisions of
this Agreement in any other jurisdiction.
19. Waiver of Breach.
The waiver by any party of a breach of any provisions of this
Agreement, which waiver must be in writing to be effective, shall not operate or
be construed as a waiver of any subsequent breach.
20. Notices.
All notices hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, or one (1) day after sending by express
mail or other "overnight mail service," or three (3) days after sending by
certified or registered mail, postage prepaid, return receipt requested. Notice
shall be sent as follows: if to Executive, to the last known address provided by
the Executive in the Company's records and, if to the Company, at the address
set forth on the first page of this
21
<PAGE>
Agreement, attention of the General Counsel. Either party may change the notice
address by notice in accordance with this Section.
21. Assignability; Binding Effect.
This Agreement shall be binding upon and inure to the benefit of
Executive and Executive's legal representatives, heirs and distributees, and
shall be binding upon and inure to the benefit of the Company, its successors
and assigns. This Agreement may not be assigned by the Executive. This Agreement
may not be assigned by the Company, except in connection with a merger or a sale
by the Company of all or substantially all of its assets and, in such event,
only on the condition that the assignee specifically assumes in writing all of
the Company's obligations under this Agreement.
22. Governing Law.
All issues pertaining to the validity, construction, execution and
performance of this Agreement shall be construed and governed in accordance with
the laws of the State of California, without giving effect to the conflict or
choice of law provisions thereof.
23. Arbitration.
23.1. In the event of any dispute of any kind whatsoever between the
parties, arising out of or related in any way to this Agreement, the parties
agree to submit all such disputes to binding arbitration. Each party shall be
entitled to appoint one arbitrator, who shall not be an affiliate, officer,
director, employee, agent, vendor or contractor of that party. The appointed
arbitrators shall then appoint a neutral arbitrator
22
<PAGE>
who shall serve as Chairman, and the arbitration shall be conducted by the
arbitrators so chosen. The parties' arbitrators shall be experienced executives
in the technology industry, and the Chairman shall be an attorney practicing
litigation in the field of employment law. The arbitration shall be conducted in
Santa Clara County, California. Demand for arbitration shall be made in writing
and shall be served upon the party or parties to whom the demand is addressed in
the manner provided for the tender of notices in this Agreement. If the party
receiving the demand for arbitration does not appoint its arbitrator within 30
days after receiving such notice, the arbitrator appointed by the party serving
the demand for arbitration shall be further empowered to serve as the sole
arbitrator, notwithstanding that he fails to meet the qualifications for the
Chairman set forth in this Section.
23.2. The arbitrators are authorized to award any remedy, legal or
equitable, as well as any interim relief as they deem appropriate in their
discretion. However, notwithstanding the foregoing, the arbitrators shall have
no power to add to, subtract from, or modify any of the terms or conditions of
this Agreement.
23.3. Subject to the arbitration agreement stated in this Article, the
federal and state courts located in Santa Clara County, California shall have
exclusive jurisdiction over all other legal proceedings between the parties.
Executive agrees to the personal jurisdiction of said courts and to the receipt
of service of process in the same form as other notices under this Agreement.
Application may be made to any such court to assist the arbitrators in
performing their arbitral duties, to confirm their award and to
23
<PAGE>
enforce any such award as a judgement of said court.
24. Headings And Gender Neutrality.
The headings in this Agreement are intended solely for convenience or
reference and shall be given no effect in the construction or interpretation of
this Agreement. The use of either masculine or feminine pronouns in this
Agreement are merely a convenience of the draftsperson and shall not be
indicative of any party's gender.
25. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
24
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and Executive has hereunto set his hand as of the date first set forth
above.
CYLINK CORPORATION
By: /s/ William P. Crowell
---------------------------
Name: William P. Crowell
Title: CEO and President
EXECUTIVE
/s/ Pamela Drew
--------------------------
Pamela Drew
25
<PAGE>
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment is made as of the 1st day of January, 2002 (the
"Effective Date"), by and between Cylink Corporation, a California corporation
with its principal place of business at 3131 Jay Street, Santa Clara, California
95054 (the "Company"), and Pamela E. Drew, residing at 19369 Greenwood Avenue,
Cupertino, CA (the "Executive").
WHEREFORE, the Company and Executive executed an Employment Agreement
(the "Agreement") having an Effective Date of December 1, 2000;
WHEREFORE, the Company has revised some of the standard terms of its
executive Employment Agreements;
NOW THERFORE, the parties agree as follows:
1. Article 5 of the Agreement is revised to state:
Stock Options.
5.1. The Compensation Committee of the Board (the "Compensation
Committee") authorized granting to Executive on December 1, 2000, options to
purchase 30,000 shares of Company common stock at an exercise price of $3.44 per
share, pursuant and subject to the Company's 1994 Flexible Stock Incentive Plan
(the "Plan"). Such options shall be non-qualified or incentive stock options, or
a combination thereof as determined by the Plan's Administrator. The terms of
the options, as more fully set forth in the option
<PAGE>
First Amendment
Employment Agreement
Pamela Drew
agreement annexed hereto as Attachment A, and specifically modified by this
Section 5, shall provide that (i) they shall be for a maximum six (6) year term,
and (ii) shall vest and become exercisable ratably over a four (4) year period
on the last day of each month during such period, provided: (A) the Executive is
employed by the Company on each vesting date, and provided further, that (B) the
initial twenty five percent (25%) of the options shall not be exercisable unless
and until the Executive remains employed by the Company on the first anniversary
of the Effective Date.
5.2. Furthermore, in the event of a "Corporate Transaction" or "Change
In Control" during the Term of this Agreement, the Executive will be entitled to
vesting of all of the Executive's then unvested options (the "Accelerated
Options") under all option agreements granted during the period of her
employment, subject to the provisions of this Section 5:
5.2.1. In the event of a "Corporate Transaction" the Accelerated
Options shall fully vest immediately prior to closing unless
the Company's successor in interest, or its parent, offers to:
5.2.2. either (i) assume the Executive's Accelerated Options in
accordance with Section 11 of the Plan and allow them to
continue vesting in accordance with their terms, or (ii)
replace them with equivalent options, having the same vesting
schedule as the original grant by the Company, to purchase
publicly traded shares in the successor corporation or its
27
<PAGE>
First Amendment
Employment Agreement
Pamela Drew
Parent by exchanging them at the same rate of conversion
offered to the Company's common shareholders in the Corporate
Transaction, and
5.2.3. provided further that the successor in interest agrees to
fully vest all such assumed or exchanged Accelerated Options
on the earlier of: (i) the first anniversary of his continued
employment following such Corporate Transaction, or (ii) upon
termination of the Agreement by the Company or its successor
in interest if such termination occurs either without good
Cause or by the Executive for Good Reason.
5.3. In the event of a Change In Control, the Accelerated Options shall
vest on the earlier of: (i) the first anniversary of such Change In Control, or
(ii) upon termination of the Agreement by the Company or its successor in
interest if such termination occurs either without good Cause or by the
Executive for Good Reason. For purposes of the Agreement and this Amendment, the
terms "Corporate Transaction" and "Change in Control" shall have the definitions
of the Plan, except that a "Corporate Transaction" shall also include the
acquisition of more than 50% of the Company's outstanding securities by any
person or related group of persons as defined in Section 13(d)(3) of the
Securities Act of 1934, other than the entities and transactions identified on
the Attachment to this First Amendment.
28
<PAGE>
First Amendment
Employment Agreement
Pamela Drew
2. Article 6 is revised to state:
Paid Time Off ("PTO").
During the Employment Term, Executive shall be entitled to PTO,
including vacation, equal to the greater of: (i) fifteen days plus one
additional day for each year of employment by the Company, or (ii) twenty days
plus one additional day for each year of employment under this Agreement; but in
no event more than 25 days, in each full calendar year (prorated for any partial
year) to be taken at such times as mutually agreed by the Executive and the
Chief Executive Officer.
3. All other terms and conditions of the Agreement shall remain in full force
and effect as if restated in their entirety herein.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and Executive has hereunto set his hand as of the date first set forth
above.
CYLINK CORPORATION
By: /s/ R. Fougner
--------------------------
Name: R. Fougner
Title: VP, Corporate Secretary
29
<PAGE>
First Amendment
Employment Agreement
Pamela Drew
EXECUTIVE
By /s/ Pamela Drew
--------------------------
Pamela Drew
30