EMPLOYMENT AGREEMENT
Exhibit 10.47
THIS EMPLOYMENT AGREEMENT (“Agreement”), dated as of May 22, 2008 and shall become effective
as of April 4, 2008, is by and between Trustwave Holdings, a Delaware corporation (“Holdings”) and
Xxxx X. Xxxxxxxx (“Executive”).
WHEREAS, Holdings is engaged in the business of corporate, Internet and e-commerce security
and information assurance, and vulnerability management and compliance solutions, certification
authority, identity management and managed security services (the “Business”); and
WHEREAS, Holdings desires to employ the Executive on the terms and conditions hereinafter set
forth and the Executive desires to accept such employment. This Employment Agreement shall replace
and supersede the terms and condition of the offer letter dated March 14, 2008.
NOW, THEREFORE, in consideration of the promises and the mutual agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties agree as follows:
1. Employment. The Executive shall be employed by Holdings as the Chief Financial Officer of
the Company (“CFO”) or in such other position as is consistent with the Executive’s education,
experience and background so long as the assignment of the Executive to such position is approved
by a resolution duly adopted by a majority of the Board of Directors of Holdings (the “Board”). The
Executive shall devote substantially all of the Executive’s working time and the Executive’s best
efforts to the Company and the Executive’s position, which shall include such duties as the Board
may from time to time reasonably direct that are consistent with the Executive’s education,
experience and background and that are not inconsistent with the Executive’s position. The
Executive shall not, during the Term (as defined below), have any paid employment other than with
Holdings or a subsidiary or affiliate of Holdings or serve as a director of any other business
corporation, except with the prior approval of the Board. During the Term the Executive may engage
in charitable, civic, community or trade or industry association activities, provided that
such activities do not interfere with the Executive’s duties hereunder or violate the terms of any
of the covenants contained in Sections 8, 9 and 10 hereof. From the execution date of this
Agreement (hereafter defined as the “Effective Date”) through the Term, Holdings shall not request
that the Executive relocate his principal place of residence from the
Chicago, IL metropolitan
area.
2. Compensation.
(a)
Base Salary. From the Effective Date through the first anniversary of the Effective
Date, Holdings shall pay to the Executive a minimum base salary at the rate of $250,000 per
annum. The base salary can be changed over time in the sole discretion of Trustwave.
Subsequent increases to base salary will be determined by the Board in its sole discretion.
The base salary under this Section 2(a) shall be payable to the Executive not less
frequently than monthly and shall be reduced by applicable taxes and withholdings.
(b)
Bonus Plan. In addition to the Executive’s base salary under Section 2(a) above,
for fiscal years during the Term commencing on or after the date hereof, the Executive shall
be eligible to participate in a bonus plan to be established and approved by the Board (the
“Executive Bonus Plan”). The Executive Bonus Plan target shall be determined by the Board in
its sole discretion; provided, that the bonus target shall be no less than 30% of the
Executive’s base salary in effect at such time and such portions of the bonus target may be
paid on either an annual or on a quarterly basis as provided for in the Executive Bonus
Plan. Any additional annual bonus payable to the Executive pursuant to the Executive Bonus
Plan (“Annual Bonus”) shall be based upon the satisfaction of performance criteria and
objectives set forth in the Executive Bonus Plan which shall include achievement of Company
performance targets. Except as provided in Section 7, to receive such Annual Bonus, the
Executive must still be employed with Holdings as of December 31 of the year for which the
Annual Bonus is payable and not be in breach of this Agreement. Except as otherwise set
forth herein, any such Annual Bonus shall be payable no later than 120 days following the
end of the fiscal year for which it is awarded, and shall be reduced by applicable taxes and
withholdings.
(c) Company Stock Options. The Executive, subject to approval by Trustwave’s Board of
Directors, will be granted an option to purchase up to 500,000 Class A common stock of the
Company under and subject to the terms of the Trustwave Stock Incentive Plan (“Plan”) and
pursuant to the Trustwave Stock Grant Agreement (“Option”) at the then fair market value.
The Executive’s right to exercise the Option shall be pursuant Section 6.03 Vesting of the
Plan as follows: (i) twenty-five percent (25%) of the shares subject to the Option shall
vest and become exercisable on the first anniversary of your start date (April 4, 2008) and
(ii) one-twelfth of the remaining seventy-five percent (75%) of the Shares subject to the
Option (or six and twenty-five hundredths percent (6.25%)) shall vest and become exercisable
on the first quarterly anniversary of the first anniversary of your start date (April 4,
2008) and on each successive quarterly anniversary thereafter. Notwithstanding, if there is
a Change in Control of the Company, then fifty percent (50%) of any unvested options at the
time of the Change in Control shall vest.
3. Insurance, Retirement and Employee Benefit Plans, Fringe Benefits; Business Expenses.
(a) Other Benefits and Perquisites. During the Term, the Executive shall be eligible to
participate in any plan of Holdings relating to stock options and stock grants, employee
stock purchase or ownership, 401(k), group life insurance, medical coverage, or other
employee benefit plans or arrangements that Holdings has adopted or may adopt for the
benefit of its employees. Holdings reserves the right to modify or terminate any employee
benefit or perquisite at any time. Upon any termination or expiration of this Agreement, the
Executive will be entitled to all accrued benefits pursuant to all such employee benefits or
perquisites as provided in such employee benefits or perquisites.
The criteria utilized to determine whether the Executive will receive an award of stock
options or stock grants under any plan of Holdings, the number of shares of common stock of
Holdings subject to any such stock option or stock grant and the terms and conditions of any
such stock option or stock grant shall be substantially similar to the
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criteria utilized to determine such matters in connection with awards under any stock
option or stock grant plan of Holdings to similarly situated executives of Holdings, and
shall be applied by Holdings in good faith on a substantially consistent basis among
substantially similar executives of Holdings. Notwithstanding the foregoing, the Executive
acknowledges and agrees that the determination of whether to award stock options or stock
grants, the number of shares of common stock of Holdings subject to any such stock option
or grant and the terms and conditions of any such stock option or
grant, are in the sole
discretion of Holdings and any award of stock options or stock grants shall be made by
Holdings on an individual basis with respect to persons eligible to be granted such awards,
taking into account individual performance and circumstances. The parties agree that the
plan or award agreement pursuant to which any such stock options or grants are awarded to
the executive shall provide that any such stock options or stock grants which are subject
to any vesting provisions shall all automatically vest upon the first to occur of (A) the
death or Incapacity of the Executive, (B) termination of the Executive’s employment by
Holdings without Cause or by the Executive for Good Reason, (C) a change of control of
Holdings, and (D) an initial public offering by Holdings.
(b) Business Expenses. During the Term, Holdings shall promptly reimburse the
Executive for all reasonable and customary expenses incurred by the Executive in furtherance
of his duties under this Agreement, including all expenses of travel and living expenses
while away from home on business or at the request of and in the service of the Company,
provided that such expenses are incurred and accounted for in accordance with the
published policies and procedures established by the Company. Such expenses shall be
reimbursed upon submission to Holdings of invoices containing original receipts for all such
expenditures and upon review by Holdings of the reasonable nature of such expenditures.
4. Term. The employment under this Agreement shall be from the Effective Date until the
Executive’s employment terminates pursuant to Section 6 below (“Term”). The Term shall continue,
unless either the Executive or Holdings gives the other party a Notice of Termination as defined in
Section 6(f). If Executive gives such a Notice of Termination to Holdings, it shall be deemed, for
all purposes of this Agreement, as a termination by Executive without Good Reason pursuant to
Section 6(e)(1)(B).
5. Vacations; Illness. The Executive shall be entitled to an annual paid vacation of three (3)
weeks per year (which shall include personal days and sick days), which if not taken during any
year may not, except up to five days, be carried forward and no compensation shall be payable in
lieu thereof, seven (7) recognized holidays, and three (3) floating holidays. The accrual of annual
leave and holidays shall be pursuant to the company’s policies as set forth in the Trustwave
Handbook.
6. Termination of Employment. The Executive’s employment may be terminated under the following
circumstances:
(a) This section has been purposefully deleted.
(b) Death. The Executive’s employment shall terminate upon the Executive’s
death.
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(c)
Incapacity. if the Executive is unable to perform the Executive’s duties under
this Agreement because of physical or mental incapacity or disability for a continuous period of
ninety (90) days, even with reasonable accommodation, the Executive will be deemed to have
terminated the Executive’s employment. The Incapacity of Executive will be determined by agreement
between Executive and Holdings; provided that if the Executive and Holdings cannot so agree, than
the Incapacity of Executive will be determined by a medical doctor selected by written agreement of
Holdings and Executive upon the request of either party by notice to the other. If Holdings and
Executive cannot agree on the selection of a medical doctor, each of them will select a medical
doctor and the two medical doctors will select a third medical doctor who will determine whether
Executive has an Incapacity. The determination of the medical doctor selected under this Section
6(c) will be binding on both parties. Executive must submit to a reasonable number of examinations
by the medical doctor making the determination of Incapacity under
this Section 6(c), and Executive
hereby authorizes the disclosure and release to Holdings of such determination and all supporting
medical records. if Executive is not legally competent, Executive’s legal guardian or duly
authorized attorney-in-fact will act in Executive’s stead, under this Section 6(c), for the
purposes of submitting Executive to the examinations, and providing the authorization of
disclosure, required under this Section 6(c).
(d) Termination of Employment by Holdings. Holdings may terminate the Executive’s
employment at any time with or without Cause; provided that the Executive may be terminated
for Cause under Sections 6(d)(1) or 6(d)(4) only if Holdings has given the Executive written notice
of such failure, stating that such failure will be grounds for termination for Cause, if the
Executive fails to cure such failure within 30 days following receipt of such written notice. For
all purposes under this Agreement, “Cause” shall mean:
(1) Executive’s willful and intentional disregard of instructions of the CEO which, in
the CEO’s reasonable good faith judgment, has caused or will cause substantial and material
injury to the business and operations to the Company or any of its subsidiaries;
(2) a material breach by the Executive of his duties hereunder (other than as a result
of his disability) which is willful, deliberate or grossly negligent on the Executive’s
part, or committed in bad faith;
(3) a conviction of, or a plea of “guilty” or “no contest” to, a felony (other than a
felony resulting from a traffic violation), or the commission of any other act or omission
involving disloyalty, fraud or moral turpitude with respect to the Company or its
subsidiaries; provided, that in the reasonable judgment of the CEO, such failure
has caused or will cause injury to the business and operations to the Company or any of its
subsidiaries;
(4) a breach by the Executive of any one or more of the covenants contained in
Sections 8, 9 and 10 of this Agreement;
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(5) the Executive’s use of alcohol or illegal drugs which materially interferes with
the performance of his duties hereunder; and
(6) the Executive’s material, knowing and intentional failure to comply with
applicable laws with respect to the execution of the Company’s or any of its subsidiaries’
business and operations; provided, that in the reasonable judgment of the Board,
such failure has caused or will cause substantial and material injury to the business and
operations to the Company or any of its subsidiaries.
No act or failure to act shall be considered “willful” for this purpose unless done, or omitted to
be done, by the Executive other than in good faith and other than with a reasonable belief that the
Executive’s action or omission was in the best interests of the Company. The Executive shall not be
deemed to have been terminated for Cause unless the Executive shall have been provided with a
Notice of Termination as defined in Section 6(f).
(e) Termination by the Executive.
(1) The Executive may terminate the Executive’s employment (A) for Good Reason,
provided that the Executive may resign for Good Reason only if the Executive
provides notice of such reason for resignation to the Company stating that such reason will
be grounds for resignation for Good Reason if Holdings fails to cure such reason within
thirty (30) days following receipt of such notice or (B) for any other reason by giving
thirty (30) days prior written notice to Holdings.
(2)
For this purpose, “Good Reason” shall mean (A) the Executive’s duties or level of
responsibility has been materially reduced from his duties or level of responsibility as
set forth in Section 1(a); (B) Holdings requires that the Executive relocate his principal
place of work more than 25 miles from the Chicago, IL metropolitan area, or (C) any other
material failure by Holdings to comply with any material provisions of this Agreement which
failure continues for more than thirty (30) days after written notice of such noncompliance
from the Executive pursuant to Section 6(e)(1).
(f) Notice of Termination. Any termination of the Executive’s employment by Holdings
or by the Executive (other than termination pursuant to Section 6(b) or (c) hereof) shall be
communicated to the other party by a written Notice of Termination. Any Notice of Termination given
by a party shall specify the particular termination provision of this Agreement relied upon by such
party and, in the case of termination of the Executive’s employment for Cause pursuant to Section
6(d) or the termination of the Executive’s employment for Good Reason pursuant to Section 6(e),
shall set forth in reasonable detail the facts and circumstances relied upon as providing a basis
for the termination under such provision.
(g) Termination Date. The Termination Date shall mean (1) if the Executive’s
employment is terminated by the Executive’s death, the date of the Executive’s death; (2) if the
Executive’s employment is terminated by Incapacity, the date ninety (90) days after the Executive
first becomes incapacitated; (3) if the
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Executive’s
employment is terminated by Holdings for Cause, the date specified in the Notice of
Termination; (4) if the Executive resigns for Good Reason, thirty (30) days following the date on
which the Notice of Termination is given, if Holdings fails to cure; (5) if the Executive resigns
without Good Reason, ten (10) business days following the date on which the Notice of Termination
is given or such later date as specified in the Notice of Termination; or (6) if the Executive’s
employment is terminated without Cause, ten (10) business days following the date on which the
Notice of Termination is given or such later date as specified in the Notice of Termination.
Holdings may, in its sole discretion, terminate the Executive’s employment at any time during the
ten day notice periods, provided it pays the Executive the equivalent of the Executive’s
base salary for the remainder of the notice period.
(h) Limitations on Terminations by the Company. Notwithstanding anything to the
contrary contained herein, Holdings may not terminate the Executive’s employment pursuant to this
Section 6 in the absence of approval by at least a majority of the full Board (including any vacant
positions on the Board).
7. Compensation Upon Termination of Employment.
(a) Termination because of Death or Incapacity. If the Executive’s employment is
terminated during the Term because of the Executive’s death or Incapacity, all obligations of
Holdings hereunder (other than those which, pursuant to Section 12, survive termination of this
Agreement and other than any obligations of Holdings related to any debt, equity or other
securities (including options, warrants or securities convertible or exchangeable into debt or
equity) of Holdings held by the Executive) immediately shall cease, except that the Company shall
pay to the Executive or the Executive’s estate, as applicable:
(1) the Executive’s accrued base salary through the Termination Date to the extent not
theretofore paid;
(2) a cash amount equal to the Executive’s accrued, unused vacation pro-rated for the
portion of the year worked and determined in accordance with Holdings’ policy;
(3) if and only if the performance criteria and objectives set forth in the Executive
Plan have been satisfied for the quarter of Holdings ended immediately prior to the
Termination Date, a bonus under the Executive Bonus Plan for such fiscal year, to the extent
not theretofore paid;
(4) if within forty-five (45) days of the Termination Date the Executive or the
Executive’s legal representative signs a release of any and all claims substantially in the
form attached hereto as Attachment A (the “General Release”) and if, and only if,
the performance criteria and objectives set forth in the Executive Bonus Plan are satisfied
for the quarter of Holdings during which the Termination Date occurs and Holdings has paid
other senior executives bonuses for such quarter or year under the Executive Bonus Plan, a
prorated bonus under the Executive Bonus Plan for the pro rata portion of that fiscal year;
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Any Annual Bonus payable to the Executive under Section 7(a)(4) shall be paid to the Executive no
later than 120 days following the end of the fiscal year for which it is awarded.
(b) Termination for Cause. If Holdings terminates the Executive’s employment
during the Term for Cause, all obligations of Holdings hereunder (other than those which, pursuant
to Section 12, survive termination of this Agreement and other than any obligations of Holdings
related to any debt, equity or other securities (including options, warrants or securities
convertible or exchangeable into debt or equity) of Holdings held by the Executive) immediately
shall cease, except that Holdings shall pay to the Executive the amounts specified in Sections
7(a)(1) through (3) hereof.
(c) Termination by the Executive without Good Reason. If the Executive terminates
the Executive’s employment during the Term without Good Reason, all obligations of Holdings
hereunder (other than those which, pursuant to Section 12, survive termination of this Agreement
and other than any obligations of Holdings related to any debt, equity or other securities
(including options, warrants or securities convertible or exchangeable into debt or equity) of
Holdings held by the Executive) immediately shall cease, except that:
(1) Holdings shall pay to the Executive the amounts specified in Sections 7(a)(1)
through (3) hereof: and
(2) if within forty-five (45) days of the Termination Date the Executive signs the
General Release and if, and only if, the performance criteria and objectives set forth in
the Executive Bonus Plan are satisfied for the quarter or fiscal year of Holdings during
which the Termination Date occurs and Holdings has paid other senior executives bonuses for
such quarter or year under the Executive Bonus Plan, a prorated bonus under the Executive
Bonus Plan for the pro-rata portion of that quarter or fiscal year; provided, any
pro rata Annual Bonus payable to the Executive hereunder shall be paid to the Executive no
later than 120 days following the end of the fiscal year for which it is awarded.
(d) Termination without Cause or for Good Reason. If Holdings terminates
the Executive’s employment without Cause as a result of a Change in Control of the Company or the
Executive terminates the Executive’s employment for Good Reason, all obligations of Holdings
hereunder (other than those which, pursuant to Section 12, survive termination of this Agreement
and other than any obligations of Holdings related to any debt, equity or other securities
(including options, warrants or securities convertible or exchangeable into debt or equity) of the
Company held by the Executive) immediately shall cease, except that:
(1) Holdings shall pay to the Executive the amounts specified in Sections 7(a)(1)
through (3) hereof;
(2) if within forty-five (45) days of the Termination Date the Executive signs the
General Release, Holdings shall pay to the Executive, less applicable taxes and
withholdings, (i) the Executive’s then current base salary
(but no less than $250,000) for
twelve (12) months and (ii) if and only if the performance
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criteria
and objectives set forth in the Executive Bonus Plan are satisfied for the
quarter or fiscal year of Holdings during which the Termination Date occurs and
Holdings has paid other senior executives bonuses for such year under the Executive
Bonus Plan, a prorated annual bonus under the Executive Bonus Plan for the pro rata
portion of that fiscal year (collectively, the items described in clauses (i) and
(ii), the “Severance Payments”). The Severance Payments shall be paid on the same
schedule as if the Executive were still employed by Holdings. Notwithstanding the
foregoing, no Severance Payments shall be made by Holdings to the Executive
following a final determination, no longer subject to appeal, of a court of
competent jurisdiction or as a result of arbitration pursuant to Section 14(c)) that
Executive has breached any of the covenants contained in Section 8, 9 or 10 of this
Agreement; and
(3) if within forty-five (45) days of the Termination Date the Executive signs
the General Release, Holdings shall be continued on Holdings’ health insurance plan
for the twelve (12) month period commencing on the Termination Date. In the event
such coverage is not permissible, for such twelve (12) month period Holdings in its
sole discretion shall either (i) pay the Executive’s COBRA premiums (at the level of
coverage the Executive had prior to the Termination Date) or (ii) provide
alternative health insurance coverage to the Executive that is no less favorable to
the Executive than the coverage the Executive had prior to the Termination Date.
8. Confidentiality. In consideration of the willingness of Holdings to employ the
Executive and the compensation to be paid and benefits to be received therefore, and for other good
and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Executive
agrees as follows:
(a) The Company Owns All of the Executive’s Work. All improvements, discoveries,
inventions, designs, documents, literary works (including but not limited to books, articles
and white papers), licenses and patents, or other data devised, conceived, made, developed,
obtained, filed, perfected, acquired, or first reduced to practice, in whole or in part, in
the regular course of employment by the Executive during the period of the Executive’s
employment, and related in any way to the business, including development and research, of
the Company or any subsidiary or affiliate engaged in business substantially similar to that
of the Company shall be promptly disclosed to Holdings (collectively, “Works”). Any
copyrightable work falling within the definition of Works shall be deemed a “work made for
hire,” under the copyright laws of the United States, and ownership of all rights therein
shall vest in the Company. To the extent that any work is not deemed to be a “work made for
hire,” the Executive hereby assigns and transfers to the Company all of the Executive’s
right, interest and title thereto, and such Works shall become the property of the Company.
The Executive further waives any “moral” rights, or other rights with respect to attribution
of authorship or integrity of such Work that he may have under any applicable law, whether
under copyright, trademark, unfair competition, defamation, right of privacy, contract, tort
or other legal theory. During the Term and at any time thereafter, upon request of Holdings,
the Executive will promptly join and render assistance in any proceedings and execute any
papers necessary to file and prosecute applications for, and to acquire, maintain and
enforce, letters, patent trademarks, registrations and/or copyrights, both domestic and
foreign, with respect to
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such improvements, discoveries, inventions, designs, documents, licenses and patents, or other data
as required for vesting and maintaining title to same in the Company. This Section 8(a) does not
apply to (X) Works when all of the following criteria are met: (i) no equipment, supplies,
facilities, or Confidential and Proprietary Information (as defined in Section 8(b) hereof) was
used in developing the Works or in applying for or obtaining a patent or copyright; (ii) the Work
was developed entirely on the Executive’s own time; (iii) the Work does not relate directly to the
business of the Company or any of its subsidiaries or affiliates or to actual or demonstrably
anticipated research or development by the Company or any of its subsidiaries or affiliates and
(iv) the Work does not result from any work performed by the Executive for or at the request of
Holdings or any of its subsidiaries or affiliates or (Y) books written by the Executive and
published prior to the Effective Date or other literary works determined by the Board in its sole
discretion to be excluded from the application of this Section 8(a).
(b) Non-Disclosure of Confidential Information. The Executive agrees and acknowledges that the
term “Confidential and Proprietary Information” shall mean any and all information which the
Executive learns as a result of the Executive’s employment with Holdings and which is not in the
public domain, in any form, emanating from or relating to the Company and its subsidiaries and
affiliates, including, but not limited to, trade secrets, technical information, costs, designs,
drawings, processes, systems, methods of operation and procedures, formulae, test data, know-how,
improvements, price lists, financial data, code books, invoices and other financial statements,
computer programs, discs and printouts, sketches and plans (engineering, architectural or
otherwise), employees’ and consultants’ benefits, perquisites, salaries, stock options,
compensation, formulas or bonuses, and their non-business addresses and telephone numbers,
organizational structure and reporting relationships, customer lists, telephone numbers, names,
addresses, information about equipment and processes (including specifications and operating
manuals), or any other compilation of information written or unwritten that is used in the business
of the Company or any subsidiary or affiliate that gives the Company or any subsidiary or affiliate
any opportunity to obtain an advantage over competitors of the Company who do not know or use such
information. The Executive agrees and acknowledges that all Confidential and Proprietary
Information, in any form, and all copies and extracts thereof, is and are and shall remain the sole
and exclusive property of the Company and, upon termination of the Executive’s employment with
Holdings, the Executive hereby agrees to return to the Company the originals and all copies of any
Confidential and Proprietary Information provided to or acquired by the Executive during the period
of the Executive’s employment. Executive agrees that he/she shall not, at any time during or after
the Executive’s employment, disclose to any unauthorized person or use for the Executive’s own
account any of such Confidential Information without Holdings’ prior written consent, unless and to
the extent that any Confidential Information (i) becomes generally known to and available for use
by the public other than as a result of Executive’s acts or omission to act, or (ii) is required to
be disclosed pursuant to any applicable law or court order, provided that with respect to the
foregoing clause (ii), Executive shall at the earliest practicable date provide a copy of the
subpoena or court order to Holdings.
(c) Customers’ Information. The Executive understands and acknowledges that each customer of
the Company or its subsidiaries or affiliates may disclose information that will be within the
Company’s control in connection with the Company’s
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furnishing of services to its customer. The Executive covenants and agrees to hold such
information in the strictest confidence and shall treat such information in the same manner
and be obligated by the provisions of this Agreement as if such information were
Confidential and Proprietary Information, as defined in Section 8(b) hereof.
9. Covenant
Not to Compete. During the Executive’s employment with Holdings and for a period
of one (1) years thereafter (the “Non-Competition Period”), the Executive shall not directly or
indirectly own, manage, operate, control or be employed by or participate in the ownership,
management, operation or control of any business that directly competes with the Prohibited
Business (as defined below) within the geographical area in the United States in which, as of the
Termination Date, the Company or any of its subsidiaries conduct the Prohibited Business or have
written plans to conduct the Prohibited Business. The “Prohibited Business” shall mean the Business
conducted by the Company or any of its subsidiaries (including the development, marketing and sale
of information security related software, professional services, technology or products) on the
Termination Date and during the six month period prior to the Termination Date.
10. Non-Solicitation. During the Executive’s employment with Holdings and for a period of one
(1) years thereafter (the “Non-Solicitation Period”), the Executive shall not, except with prior
written approval of the Board, directly or indirectly, individually or as part of or on behalf of
any other person, company, employer or other entity:
(a) (i) persuade or attempt to persuade any existing customer or agent with which the
Company has a contract (“Contracted Customer”) to cease doing business constituting the
Prohibited Business with the Company or any of its subsidiaries, or to reduce the amount of
business constituting the Prohibited Business any customer or agent does with the Company or
any of its subsidiaries, or (ii) solicit for himself or any entity any business constituting
the Prohibited Business of a Contracted Customer of the Company or any of its subsidiaries
or solicit any business constituting the Prohibited Business which was a Contracted Customer
of the Company or with which the Executive is aware (or is made aware prior to the
Termination Date) that the Company is in direct discussions as a prospective Contracted
Customer of the Company (or any of their subsidiaries) within twelve (12) months prior to
the Termination Date; or
(b) hire, attempt to recruit or solicit for hire, or for any purpose whatsoever
encourage to end or abandon their employment, reduce or diminish in any way their
relationship or breach any agreement, with the Company or any of its subsidiaries, any
persons who have been employed by the Company or any of its subsidiaries at any time within
the twelve (12) months prior to such hiring, recruitment or solicitation, other than (i) any
such employee whose employment with the Company or any of its subsidiaries is terminated by
the Company or any of its subsidiaries, or (ii) any such employee who voluntarily terminates
his or her employment with the Company or any of its subsidiaries, so long as the Executive
did not induce or encourage such employee so to voluntarily terminate his or her employment.
The parties acknowledge that the restrictions contained in this Sections 10(b) will not
apply to any general advertisements or solicitations for employees.
11. Amendments or Additions: Action by Board. No amendments or additions to the Agreement
shall be binding unless in writing and signed by all parties hereto. The prior
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approval by a majority affirmative vote of the full Board shall be required in order for Holdings
to authorize any amendments or additions to this Agreement, to give any consents or waivers of
provisions of this Agreement, or to take any other action under this Agreement including any Notice
of Termination.
12. Survival. Sections 3, 8, 9, 10 and 14(c) of this Agreement shall survive and continue in
full force and effect in accordance with their respective terms, notwithstanding the termination of
the Executive’s employment hereunder.
13. Representations. The Executive represents and warrants to Holdings that (a) the execution,
delivery and performance of this Agreement by the 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 the Executive is a party or by which the Executive is bound, (b) the Executive is
not a party to or bound by any employment agreement, non-competition agreement or confidentiality
agreement with any other person or entity and (c) upon the execution and delivery of this Agreement
by Holdings, this Agreement shall be the valid and binding obligation of the Executive, enforceable
in accordance with its terms.
14. Miscellaneous.
(a) Notices. Any notice required or permitted hereunder shall be given in writing and
shall be personally delivered or mailed by first class registered or certified mail, postage
prepaid, return-receipt-requested, or transmitted by facsimile.
If notice is to be sent to Holdings, it will be sent to:
Trustwave Holdings, Inc.
Legal Department
00 X. Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
Legal Department
00 X. Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
If notice is to be sent to the Executive, it will be sent to:
Xxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Each notice or communication that shall have been transmitted in the manner described above,
or that shall have been delivered to a telegraph company, shall be deemed sufficiently
given, served, sent or received at such time as it is received (or
refused) by the addressee
(with the return receipt, delivery receipt or (with respect to a telex) the answer back
being deemed conclusive, but not exclusive, evidence of such sending) or at such time as
delivery is refused by the addressee upon presentation.
(b) Severability and Reformation. Nothing in this Agreement shall be construed so as to
require the commission of any act contrary to law and wherever there is any conflict between
any provision of this Agreement and any law, statute, ordinance, order or regulation, the
latter shall prevail, but in such event any necessary action will be
11
taken to bring it within applicable legal requirements. If any provision of this Agreement should
be held invalid or unenforceable, the remaining provisions shall be unaffected by such a holding.
If, at any time of enforcement of Section 9 or 10 of this Agreement, a court or an arbitrator
holds that the restrictions stated therein are unreasonable under circumstances then existing, the
parties hereto 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 or
arbitrator shall be allowed to revise the restrictions contained therein to cover the maximum
period, scope and area permitted by law. This Agreement shall not authorize a court or arbitrator
to increase or broaden any of the restrictions in Section 9 or 10 of this Agreement.
(c) Dispute Resolution.
(1) Arbitration. The Executive and Holdings will mediate, and if mediation is
unsuccessful, then arbitrate any and all controversies, claims or disputes arising out of or
relating to this Agreement or the Executive’s employment with Holdings (“Claims”) before the
American Arbitration Association (“AAA”), in the city in which the Executive’s principal
office is located, in accordance with the AAA’s National Rules for the Resolution of
Employment Disputes including, but not limited to, the rules and procedures applicable to
the selection of arbitrators. Each of Holdings and the Executive waives any rights to a
trial by jury in any controversy, claim or dispute with Holdings, including those that arise
under any federal, state or local law, including without limitation, claims of harassment,
discrimination or wrongful termination under common law or under Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the
Age Discrimination in Employment Act or the Older Workers’ Benefit Protection Act. Except as
otherwise set forth in this Agreement, the cost of any mediation or arbitration hereunder,
including the cost of the record or transcripts thereof, of any administrative fees, and all
other fees involved (other than the Executive’s attorneys’ fees) shall be borne by Holdings;
provided, however, that if the arbitrator determines that the claim or position of the
Executive was frivolous or in bad faith, the Executive will bear the full costs of such
arbitration (other than Holdings’ attorneys’ fees).
(2) Injunctive Relief. Notwithstanding the agreement to arbitrate, a breach by
the Executive of his obligations under Sections 8, 9, or 10 of this Agreement would cause
the Company irreparable harm, and no adequate remedy at law would be available in respect
thereof. Accordingly, if any dispute arises between the parties under Sections 8, 9, or 10
herein, Holdings shall not be required to arbitrate such Claim under Section 14(c)(1), but
shall have the right to institute judicial proceedings in any appropriate jurisdiction and
shall be entitled to seek relief enjoining such acts. If such
judicial proceedings are
instituted, such proceedings shall not be stayed or delayed pending the outcome of any
arbitration proceeding under Section 14(c)(1) of this Agreement. Further, the Executive and
Holdings waive any objections to the jurisdiction of such courts based on improper or
inconvenient forum.
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(d) Complete Agreement. This Agreement, including all attachments hereto, and the
General Release contain the entire agreement and understanding between the parties relating
to the subject matter hereof, and supersede any prior understandings, agreements or
representations by or between the parties, written or oral, relating to the subject matter
hereof.
(e) Successors or Assigns. This Agreement and the rights and obligations of the parties
hereto shall bind and inure to the benefit of any successor or successors of Holdings by way
of reorganization, merger or consolidation and any assignee of all or substantially all of
its business assets, but except as to any such successor or assignee of Holdings, neither
this Agreement nor any rights or benefits hereunder may be assigned by Holdings or the
Executive. Notwithstanding the foregoing, in the event of the death of the Executive all
rights to receive payments hereunder shall become rights of the Executive’s estate.
(f)
Section Headings. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
(g) Governing Law. This Agreement shall be governed and construed in accordance with
the laws of the State where the Executive is employed without regard to principles of
conflict of laws.
(h) Counterparts. This Agreement may be executed in two counterparts, each of which
shall be deemed to be an original and both of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement on the day and year
first above written.
| EXECUTIVE | ||||||
By:
|
/s/ Xxxxxx XxXxxxxx | /s/ Xxxx Xxxxxxxx | ||||
| Xxxxxx XxXxxxxx | Xxxx Xxxxxxxx | |||||
| CEO | ||||||
13
Attachment A
GENERAL RELEASE
THIS GENERAL RELEASE (“Release”) is executed by Xxxx Xxxxxxxx (the “Executive”) pursuant to
Section 7(a)(4), 7(c)(2) or 7(d)(3) and (4) of the Employment Agreement dated as of April 4, 2008
by and between Trustwave Holdings, Inc., a Delaware corporation (the “Company”) and the Executive
(the “Employment Agreement”).
WHEREAS, the Executive’s employment with the Company is terminating;
WHEREAS, the Executive has had 45 days to consider the form of this Release;
WHEREAS, the Company advised the Executive in writing to consult with an attorney before
signing this Release;
WHEREAS, the Executive acknowledges that the consideration to be provided to the Executive
under the Employment Agreement is sufficient to support this Release; and
WHEREAS, the Executive understands that the Company regards the representations and covenants
by the Executive in the Employment Agreement and this Release as material and that the Company is
relying on such representations and covenants in paying amounts to the Executive pursuant to the
Employment Agreement.
THE EXECUTIVE THEREFORE AGREES AS FOLLOWS:
1. The Executive shall receive the payments and benefits set forth in Section 7(a)(4), 7(c)(2)
or 7(d)(3) and (4) of the Employment Agreement in accordance with the terms and subject to the
conditions thereof.
2. The Executive, on behalf of himself and anyone claiming through him, hereby agrees not to
xxx the Company or any division, subsidiary, affiliate or other related entity of the Company
(whether or not such entity is wholly owned) or any of the past, present or future directors,
officers, administrators, trustees, fiduciaries, employees, agents, attorneys or shareholders of
the Company or any of such other entities, or the predecessors, successors or assigns of any of
them (hereinafter referred to as the “Released Parties”), and agrees to release and discharge,
fully, finally and forever, the Released Parties from any and all claims, causes of action,
lawsuits, liabilities, debts, accounts, covenants, contracts, controversies, agreements, promises,
sums of money, damages, judgments and demands of any nature whatsoever, in law or in equity, both
known and unknown, asserted or not asserted, foreseen or unforeseen, which the Executive ever had
or may presently have against any of the Released Parties arising from the beginning of time up to
and including the date of this Release, including, without limitation, all matters in any way
related to the Executive’s employment by the Company or any of its subsidiaries or affiliates, the
terms and conditions thereof and the termination or cessation of the Executive’s employment by the
Company or any of its subsidiaries or affiliates, and including, without limitation, any and all
claims arising under the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights
Act of 1866, the Age Discrimination in Employment Act, the Older Workers’ Benefit Protection Act,
the Family and Medical Leave Act, the Americans With Disabilities Act, the Employee Retirement
Income Security Act of 1974, each as may be
amended from time to time, or any other federal, state, local or foreign statute, regulation,
ordinance or order, or pursuant to any common law doctrine;
provided, however, that nothing
contained in this Release shall apply to, or release the Company from, (a) any obligation of the
Company contained in Section 3 or 7 of the Employment Agreement, or (b) any obligation of the
Company related to any debt, equity or other securities (including options, warrants or securities
convertible or exchangeable into debt or equity) of the Company held
by the Executive. The
consideration offered in Section 7(a)(4), 7(c)(2) or 7(d)(3) and (4) of the Employment Agreement is
accepted by the Executive as being in full accord, satisfaction, compromise and settlement of any
and all claims or potential claims, and the Executive expressly agrees that, except as expressly
provided in the provision within the immediately preceding sentence, the Executive is not entitled
to, and shall not receive, any further recovery of any kind from the Company or any of the other
Released Parties, and that in the event of any further proceedings whatsoever based upon any matter
released herein, neither the Company nor any of the other Released Parties shall have any further
monetary or other obligation of any kind to the Executive, including any obligation for any costs,
expenses or attorneys’ fees incurred by or on behalf of the Executive.
3. The Executive expressly represents and warrants that the Executive is the sole owner of the
actual and alleged claims, demands, rights, causes of action and other matters that are released
herein; that the same have not been transferred or assigned or caused to be transferred or assigned
to any other person, firm, corporation or other legal entity; and that the Executive has the full
right and power to grant, execute and deliver the general release, undertakings and agreements
contained herein.
4. ACKNOWLEDGMENT BY EXECUTIVE. BY EXECUTING THIS RELEASE, THE EXECUTIVE EXPRESSLY
ACKNOWLEDGES THAT THE EXECUTIVE HAS READ THIS RELEASE CAREFULLY, THAT THE EXECUTIVE FULLY
UNDERSTANDS ITS TERMS AND CONDITIONS, THAT THE EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN
ATTORNEY PRIOR TO EXECUTING THIS RELEASE, THAT THE EXECUTIVE HAS BEEN ADVISED THAT THE EXECUTIVE
HAS 45 DAYS WITHIN WHICH TO DECIDE WHETHER OR NOT TO EXECUTE THIS RELEASE AND THAT THE EXECUTIVE
INTENDS TO BE LEGALLY BOUND BY IT. DURING A PERIOD OF SEVEN DAYS FOLLOWING THE DATE OF THE
EXECUTIVE’S EXECUTION OF THIS RELEASE, THE EXECUTIVE SHALL HAVE THE RIGHT TO REVOKE THE RELEASE OF
CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT BY SERVING THE COMPANY WITHIN SUCH PERIOD
WRITTEN NOTICE OF REVOCATION.
5. This
Release contains the entire agreement and understanding between the parties relating
to the subject matter hereof and supersedes any prior understandings, agreements or representations
by or between the parties, written or oral, relating to the subject matter hereof.
6. This Release shall be governed and construed in accordance with the laws of the State where
the Executive is employed without regard to principles of conflict of laws.
(SIGNATURE ON NEXT PAGE)
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| EXECUTIVE |
||||
| Xxxx Xxxxxxxx |
||||
| Date: | ||||
