EMPLOYMENT AGREEMENT
Exhibit 10.2
This
EMPLOYMENT AGREEMENT (the "Agreement'),
dated as of November 22, 2016, (the "Effective Date"),
is by and between root9b Technologies, Inc., a Delaware
corporation, with offices located at 0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx XX 00000 (the "Company"), and Xxxxxxx Xxxxxxxx (the
"Employee").
WITNESSETH:
WHEREAS, the
Company desires to set forth the conditions of the Employee's
continued employment; and
WHEREAS, the
Employee desires to render services to the Company upon the terms
and conditions hereinafter set forth.
NOW,
THEREFORE, the parties mutually agree as follows:
Section
I.
Employment.
The Company and Employee agree that Employee's
continued
employment shall be
subject to the terms and conditions set forth in this
Agreement.
Section
2.
Duties.
The Employee shall serve as Chief Financial Officer ("CFO") of the Company until November 22,
2016. On that date, the Employee will cease to be the CFO but will
continue to provide services during the Term as a non-officer
employee, subject to the terms hereof. The Employee shall
faithfully perform duties assigned to the Employee by the Chief
Operating Officer (the "COO") including services to assist in the
transition to a new CFO.
Section 3.
Term and Place of Employment.
3.1 Term
of Employment. The term of this Agreement shall be for the
period commencing on the Effective Date and ending March 31, 2017
(the "Retention
Date"), subject to
earlier termination by the parties pursuant to Sections 6 and 7
hereof (the "Term"). The Employee's employment will
terminate upon conclusion of the Term. The Employee shall be
employed by the Company on an "at will" basis, meaning that either
the Company or the Employee may terminate the Employee's employment
at any time, with or without Cause.
3.2 Place
of Employment. The Employee will be assigned to work at 000
X. Xxxxxxxx Xxxxxx, Xxxxxxx XX 00000 through December 16, 2016. The
Employee may be required to travel as may be reasonably necessary
to fulfill his responsibilities, Effective December 19, 2016 (or
sooner if approved by the COO), the Employee no longer needs to
come into the office and is authorized to work
remotely.
Section
4.
Compensation.
4.1
Salary. The
Company shall pay the Employee an annual base salary of $250,000
effective as of October 1, 2016, reduced by applicable tax
withholding, payable in accordance with the Company's standard
payroll practices.
4.2
Bonus.
If the Employee remains continuously employed by the Company from
the Effective Date
through the Retention Date, completes all tasks assigned to him by
the COO to the satisfaction of the COO, and satisfies all
conditions of receipt of the payment set forth by the COO, the
Company will pay to the Employee $62,500 (the "Retention
Bonus") so long as the
Employee has signed and delivered to the Company an effective,
general release of claims in favor of the Company and its
affiliates and representatives, in a form acceptable to the Company
(the "Release"), which cannot be
revoked in whole or part, by the thirtieth (30th) day after the
Employee's termination date (the date that the Release can no
longer be revoked is referred to as the "Release Effective
Date"). If earned, the
Retention Bonus will be paid in installments over three months on
the Company's payroll schedule beginning with the first regular
payroll after the Release Effective Date. Except as otherwise
provided herein, the Employee will forfeit any and all rights to
the Retention Bonus upon his termination of employment with the
Company. No Retention Bonus will be paid if the Employee does not
complete all assigned tasks and satisfy all conditions of receipt
as described above.
4.3
Expenses.
During the Term, the Company shall reimburse the Employee for all
customary and appropriate business-related expenses actually
incurred and timely documented in accordance with Company policy,
as in effect from time to time.
4.4
Benefits.
The Employee shall be permitted during the Term to participate in
medical, dental or vision plans, disability insurance plans, bonus
plans, 401(k) plan, or similar benefits that may be available to
other professionals of the Company to the extent he is eligible
under the terms of such plans or programs.
Section
5.
Vacations/Sick
Leave/Holidays. The Employee shall be entitled to
receive the
benefits in the
Company time off policy, which currently provides for 20 paid days
off per year and increases based on tenure, to be utilized as
directed in the Company guidelines.
Section
6.
Disability/Death of
the Employee. If the Employee is incapacitated or
disabled
by
accident, sickness or otherwise so as to render the Employee
mentally or physically incapable of performing the services
required to be performed under this Agreement for a period of sixty
(60) consecutive days or longer or for any ninety (90) days in any
period of three hundred sixty (360) consecutive days (a
"Disability"), or
if the Employee dies during the Term, the Company may, at its
option, terminate the employment of the Employee under this
Agreement immediately upon giving the Employee or the Employee's
estate notice to that effect.
Section
7.
Termination.
7.1
Termination for
Cause. The Company may terminate the
employment of the Employee and all of
the Company's obligations under this Agreement at any time for
Cause (as hereinafter defined) by giving the Employee notice of
such termination, with reasonable specificity of the details
thereof. "Cause” shall
mean (i) the Employee's misconduct could reasonably be expected to
have a material adverse effect on the business and affairs of the
Company, (ii) the Employee's disregard of lawful instructions of
the Company's Board of Directors, the CEO or COO consistent with
the Employee's position relating to the business of the Company or
neglect of duties or
failure to act, which, in each case, could reasonably be expected
to have a material adverse effect on the business and affairs of
the Company, (iii) the commission by the Employee of an act
constituting common law fraud, or a felony, or criminal act against
the Company or any affiliate thereof or any of the assets of any of
them, (iv) conviction of a crime involving moral
turpitude,
or (v) the Employee's material breach of any of the agreements
contained herein or any other agreement with the Company. A
termination pursuant to Section 7.1(i), (ii) or (v) shall take
effect thirty (30) days after the giving of the notice contemplated
hereby unless the Employee shall, during such thirty (30) day
period, remedy to the satisfaction of the Board of Directors of the
Company the misconduct, disregard or breach specified in such
notice; provided, however, that such termination shall take effect
immediately upon the giving of such notice if the Board of
Directors of the Company shall, in its sole discretion, have
determined that such misconduct, disregard or breach is not
remediable (which determination shall be stated in such notice). A
termination pursuant to Section 7.1(iii) or (iv) shall take effect
immediately upon the giving of the notice contemplated
hereby.
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7.2
Termination Without
Cause. The Company may terminate the employment of the
Employee and all of the Company's obligations under this Agreement
(except as hereinafter provided) at any time during the Term
without Cause (hereinafter, "Without Cause") by giving the Employee a written
notice of such termination, to be effective thirty (30) days
following the giving of such written notice.
7.3
Resignation.
The Employee may resign or terminate the Employee's employment and
all of the Employee's obligations under this Agreement at any time
during the Term by giving the Company notice of such termination,
with reasonable specificity of the details thereof, to be effective
thirty (30) days following the giving of such written
notice.
Section
8.
Effect
of Termination of
Employment.
(a)
Upon
the termination of the Employee's employment for Cause, neither he
nor the Employee's beneficiaries or estate shall have any further
rights under this Agreement or any claims against the Company
arising out of this Agreement.
(b)
If the
Company terminates the Employee's employment Without Cause before
the Retention Date, then the Employee shall be entitled to receive
the Accrued Obligations (defined below) and, so long as the
Employee has signed and delivered to the Company a Release which
cannot be revoked in whole or part, by the thirtieth (30th) day
after the Employee's termination date, the Company will pay or
provide the following to the Employee:
(i)
The
Company will pay to the Employee the Retention Bonus in
installments over three months
on the Company's payroll schedule beginning with the first regular
payroll after the Release Effective Date.
(ii)
The
Company will accelerate vesting of outstanding Company stock
options
so that as of the Employee's termination date he will be vested in
the number of options that would have become vested and exercisable
through the Retention Date had he remained employed through that
date, and the Employee shall be permitted to exercise those options
until the earlier of June 29, 2017, or the original expiration date
of the options. The Employee understands and agrees that such an
extension of any incentive stock options intended to qualified
under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), while "in-the-money" will convert the options to
nonqualified stock options.
(iii)
Provided that the
Employee timely elects COBRA continuation coverage
under
the Company's group health plan, the Company will provide continued
group health plan coverage under COBRA for the Employee and his
eligible dependents at the premium rate paid by active employees
until the earlier of three (3) months after his termination date or
the date the Employee becomes eligible for coverage under another
employer's group health plan (provided that the fair market value
of COBRA coverage over the premium rate paid by active employees
will be considered additional taxable income to the
Employee).
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(c)
For
purposes of this Agreement, "Accrued
Obligations" are (i) the Employee's accrued but unpaid
salary through the date of termination, and (ii) any unreimbursed
business expenses incurred by the Employee payable in accordance
with the Company's standard expense reimbursement
policies.
(d)
Any
damages caused by the termination of the Employee's employment
Without Cause would be difficult to ascertain; therefore, the
severance for which the Employee is eligible pursuant to the
foregoing in exchange for the Release is agreed to by the parties
as liquidated damages, to serve as full compensation, and not a
penalty.
(e)
In the
event the Employee voluntarily resigns from employment for any
reason, dies, or terminates due to Disability prior to the end of
the Term, neither he nor the Employee's beneficiaries or estate
shall have any right to the Retention Bonus or any further rights
under this Agreement or claims against the Company arising out of
this Agreement except the right to receive the Accrued
Obligations.
(f)
Notwithstanding the
preceding provisions of this Section 8, in the event the payments
to be received by the Employee would constitute an "excess
parachute payment" under the Code, then such payments shall be
reduced accordingly so as not to constitute an "excess parachute
payment" If a reduction in payments or benefits is necessary,
reduction shall occur in the following order: (i) cash payments;
(ii) equity-based payments and acceleration; and (iii) other
non-cash forms of benefits. Within any such category of payments
and benefits (that is, (i), (ii) or (iii)), a reduction shall occur
first with respect to amounts that are not "deferred compensation"
within the meaning of Section 409A of the Code and then with
respect to amounts that are. To the extent any such payment is to
be made over time (e.g., in installments, etc.), then the payments
shall be reduced in reverse chronological order.
Section
9.
Disclosure of
Confidential Information. The Employee recognizes that he
has had and will continue to have access to secret and confidential
information regarding the Company, including but not limited to its
customer list, products, formulae, know-how, and business and
marketing plans ("Confidential
Information"). He
acknowledges that such information is of great value to the
Company, is the sole property of the Company, and has been and will
be acquired by the Employee in confidence. In consideration of the
obligations undertaken by the Company herein, the Employee will
not, at any time, during or after the Employee's employment
hereunder, reveal, divulge or make known to any person, any
Confidential Information acquired by the Employee during the course
of the Employee's employment. The provisions of this Section 9
shall survive the Employee's termination of
employment.
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Section
10.
Miscellaneous.
10.1 Section
409A. It is the intention of the parties that no payment or
entitlement pursuant to this Agreement will give rise to any
adverse tax consequences to the Employee under Section 409A of the
Code and this Agreement shall be interpreted, applied and, to the
minimum extent necessary, amended to achieve that intention.
Notwithstanding the foregoing, the Company shall not have any
liability for the tax treatment of any payments or benefits
hereunder. Any termination of the Employee that would result in the
receipt of deferred compensation under Section 409A of the Code
must also constitute a "separation from service" (as that term is
defined in Treasury Regulation Section 1.409A-1(h)). Each payment
made under this Agreement shall be treated as a separate payment.
In the case of any payment on termination (other than in compliance
with the requirements of Treasury Regulation Section 1.409A- 1
(bX9Xiii) or (v) or of any successor thereto or any other provision
that exempts a payment from Section 409A of the Code and other than
any payment that is a "short-term deferral" within the meaning of
Treasury Regulation Section 1.409A-1(b)(4)) while the Employee is a
specified employee within the meaning of Section 409A(aX2XB) of the
Code, in no event will such payment be made earlier than six months
after the Executive's "separation from service" within the meaning
of Treasury Regulation Section 1.409A-1(h). In the event that, due
to Section 409A of the Code, the Employee does not receive one or
more cash payments that would otherwise be due during that six
month period, all such delayed payments will be made on the first
day after the six-month anniversary of his "separation from
service" within the meaning of Treasury Regulation Section
1.409A-1(h), and thereafter any remaining payments shall be made in
accordance with any existing schedule. If the Retention Bonus is
considered deferred compensation subject to Section 409A of the
Code and the period to consider and revoke the Release spans two
calendar years, the payment will be made in the second year
regardless of when the Release becomes irrevocable.
10.2
Assignments.
Neither the Employee nor the Company may assign or delegate any of
their rights or duties under this Agreement without the express
written consent of the other.
10.3
Entire
Agreement. This Agreement constitutes and embodies the full
and complete understanding and agreement of the parties with
respect to the employee's employment by the Company, supersedes all
prior understandings and agreements, whether oral or written,
between the employee and the Company, and shall not be amended,
modified or changed except by an instrument in writing executed by
the party to be charged. The invalidity or partial invalidity of
one or more provisions of this Agreement shall not invalidate any
other provision of this Agreement. No waiver by either party of any
provision or condition to be performed shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same time or
any prior or subsequent time.
10.4
Withholding.
All amounts payable hereunder shall be subject to applicable tax
withholding.
10.5
Binding
Effect. This Agreement shall inure to the benefit of, be
binding upon and enforceable against, the parties hereto and their
respective successors, heirs, beneficiaries and permitted
assigns.
10.6
Headings.
The headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
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10.7
Notices.
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when personally delivered, sent by
registered or certified mail, return receipt requested, postage
prepaid, or by private overnight mail service to the party at the
address set forth above or to such other address as either party
may hereafter give notice of in accordance with the provisions
hereof. Notices shall be deemed given on the sooner of the date
actually received or the third business day after
sending.
10.8
Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona without giving
effect to such State's conflicts of laws provisions and each of the
parties hereto irrevocably consents to the jurisdiction and venue
of the federal and state courts located in the State of
Arizona.
10.9
Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one of the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
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By: /s/ Xxxxxx
Xxxxxxxx
Xxxxxx
Xxxxxxxx, COO
By: /s/ Xxxxxxx X.
Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
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