CONSULTING SERVICES AGREEMENT
Exhibit 10.19
This Consulting Services Agreement (this “Agreement”), dated as of December 16, 2023 (the “Effective Date”), is made between JFrog Ltd. an Israeli limited liability company with an address of 000 X. Xxxxxxxxx Xx., Xxxxxxxxx, XX 00000 (the “Company”), and Xxxxx Xxxxxxx (“Executive”).
WHEREAS, Executive is currently employed by the Company as its Chief Financial Officer, pursuant to that certain Confirmatory Employment Letter between Executive and JFrog, Inc., the Company’s wholly-owned U.S. subsidiary (the “Subsidiary”), dated September 1, 2020 (the “Employment Agreement”);
WHEREAS, Executive and the Subsidiary entered into an At-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, dated April 6, 2018 (the “Confidentiality Agreement”);
WHEREAS, Executive and the Subsidiary entered into a Change in Control and Severance Agreement, dated September 1, 2020 (the “Severance Agreement”);
WHEREAS, Executive intends to depart from the Company effective December 31, 2023 (the “Termination Date”); and
WHEREAS, in order to facilitate an orderly transition to a successor chief financial officer of the Company (the “Successor”), the Company desires to engage Executive as an independent contractor after the Termination Date to perform certain strategic advisory and consulting services (as described in Section 1.1 hereof, the “Services”).
NOW, THEREFORE, in consideration of the premises and the mutual promises and undertakings herein contained, the parties hereto agree as follows:
ARTICLE ONE
CONSULTING SERVICES
1.1 Services to be Performed by Executive. The Company hereby engages Executive, and Executive hereby accepts such engagement, to provide the following Services to the Company on the terms and conditions set forth in this Agreement: Executive will provide strategic advisory and consulting services to the Successor, the Chief Executive Officer and other senior executives of the Company and the members of the Company’s Board of Directors, as agreed between the Company and Executive, including with respect to form of deliverables and timing.
1.2 Termination of Employment. The Executive and Company hereby agree that Executive shall resign from the position of the Company’s Chief Financial Officer and all other positions he holds with the company and its affiliated entities, effective at the close of business on December 31, 2023.
ARTICLE TWO
COVENANTS AND WARRANTIES
2.1 Covenants of Chief Financial Officer. Executive agrees and covenants that:
form set forth as Exhibit C attached hereto, on the terms set forth therein.
2.2 Non-Solicitation. During the term of the Agreement and the twelve (12) months following the termination of Executive’s employment for any reason, to the fullest extent permitted under applicable law, Executive agrees that he will not directly or indirectly solicit any of JFrog’s employees to leave their employment at JFrog. Executive also agrees that nothing in this paragraph shall affect his continuing obligations under this Agreement during and after this twelve (12) month period. Executive separately agrees that he will never use confidential information of the Company to directly or indirectly solicit any service provider to the Company to cease their provision of services to the Company.
ARTICLE THREE
COMPENSATION
3.1 Compensation; No Additional Payments or Benefits.
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3.2 Out-of-Pocket Expenses. The Company will reimburse Executive for any and all reasonable and documented out-of-pocket expenses (including travel, if any, on a pre-approved basis) incurred by Executive in connection with Executive’s performance of the Services hereunder so long as such expenses are in accordance with the Company’s expense policies.
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ARTICLE FOUR
INDEPENDENT CONTRACTOR
4.1 Executive shall be an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between Executive and the Company for any purpose. Executive shall have no authority (and shall not hold himself out as having authority) to bind the Company and shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent.
4.2 After the Termination Date, Executive will not be eligible under this Agreement or otherwise to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by the Company (or any of its affiliates) to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker’s compensation insurance on Executive’s behalf. Executive shall be responsible for all such taxes or contributions, including penalties and interest.
ARTICLE FIVE
TERM AND TERMINATION
5.1 Term. The term of this Agreement shall commence on January 1, 2024 and shall continue through December 31, 2024.
5.2 Termination. The Company may terminate this Agreement upon giving Consultant fourteen (14) days prior written notice of such termination pursuant to Section 7.8 of this Agreement. The Company may terminate this Agreement immediately and without prior notice if Consultant refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement.
5.3 Effect of Termination. Upon the expiration or termination of this Agreement, each party shall be released from all obligations hereunder except those arising under Articles Two, Six and Seven. Upon the termination of this Agreement, Executive shall promptly surrender and deliver to the Company all documents and materials of any nature provided to Executive by the Company and any other documents or materials of any nature from any source pertaining to Executive’s performance of Services hereunder. Executive shall have no claim against the Company for lost profits or any other damages that may arise as a result of termination.
ARTICLE SIX
Nondisclosure ANd Developments
6.1 Executive acknowledges that during the term of the Agreement, he will have access to and will be entrusted with confidential information and trade secrets relating to the business of the Company. As a result, to protect the Company’s substantial investment of time and money in the creation and maintenance of its confidential information and goodwill with its customers, clients, and collaborators, this Agreement is contingent upon Executive’s signing the Company’s
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Mutual Non-Disclosure Agreement contained in Exhibit B hereto (the “NDA Agreement”) and his continued willingness to abide by its terms. Executive acknowledges and agrees that the promises contained in the NDA Agreement are in addition to any covenants relating to the same or similar conduct in the Confidentiality Agreement.
ARTICLE SEVEN
MISCELLANEOUS
7.1 Waiver. None of the terms of this Agreement may be waived except by an express agreement in writing signed by the party against whom enforcement of such waiver is sought. The failure or delay of either party in enforcing any of its rights under this Agreement shall not be deemed a continuing waiver of such right.
7.2 Entire Agreement. This Agreement (including the Exhibits hereto), together with the Confidentiality Agreement, the Option Documents and the RSU Documents (as amended hereby), constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties (whether written or oral) relating to said subject matter, including, but not limited to, the Employment Agreement and the Severance Agreement. For the avoidance of any doubt, nothing in this Agreement or any exhibit, including the NDA Agreement, is intended to supersede or alter any post-termination obligation that Executive may owe to Company pursuant to the restrictive covenants contained in his Confidentiality Agreement.
7.3 Amendments. This Agreement may not be released, discharged, amended, or modified in any manner except by an instrument in writing signed by Executive and a duly authorized officer of the Company.
7.4 Assignment. The Company has specifically contracted for the services of Executive and, therefore, Executive may not assign or delegate his obligations under this Agreement, either in whole or in part, without the prior written consent of the Company. Any purported assignment in contravention to the terms here of shall be null and void from the beginning.
7.5 Severability. If any provision of this Agreement is, becomes, or is deemed invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to the applicable laws so as to be valid and enforceable, or, if it cannot be so amended without materially altering the intention of the parties hereto, it shall be stricken, and the remainder of this Agreement shall remain in full force and effect.
7.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document, binding on all parties notwithstanding that each of the parties may have signed different counterparts.
7.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without respect to conflict of laws provisions thereof, and the parties hereby submit to the jurisdiction of the courts of the State of California.
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7.8 Notices. Each party giving any notice or making any request, demand or other material communication pursuant to this Agreement shall give such notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: (i) personal delivery, (ii) registered or certified mail, (iii) nationally recognized courier (with all fees prepaid), or (iv) via email. Any such notices required or permitted hereunder sent via methods (ii) or (iii) shall be sent to the respective addresses set forth above, or any other address as any party shall specify in writing from time to time.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed and delivered this Agreement as of the dates below.
By: Name: Title: Date:
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EXECUTIVE
Xxxxx Xxxxxxx Xxxx:
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EXHIBIT A
AWARDS
Grant Date |
Grant Type |
Number of Shares Granted |
Acceleration Amount |
Outstanding & Vested as of Termination of Employment* |
5/15/2023 |
RSU |
218,245 |
31,827 |
31,827 |
2/3/2020 |
ISO |
9,113 |
N/A |
N/A |
2/3/2020 |
NSO |
40,887 |
N/A |
27,500 |
7/29/2020 |
ISO |
2,704 |
N/A |
1,757 |
7/29/2020 |
NSO |
82,296 |
N/A |
53,492 |
7/31/2018 |
ISO |
210,075 |
N/A |
84,030 |
7/31/2018 |
NSO |
514,925 |
N/A |
211,955 |
*RSU shares vesting is contingent on the effectiveness of release; no modifications to any options have been made by this Agreement.
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EXHIBIT B
NDA AGREEMENT
This JFrog Mutual Non-Disclosure Agreement (the “Agreement”) is entered into as of the Effective Date by and between the JFrog entity defined below (“JFrog”), on behalf of itself and its Affiliates, and Counterparty, on behalf of itself and its Affiliates. JFrog and Counterparty may be referred to in this Agreement, individually as “Party” and collectively as “Parties”. “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means the ownership of at least fifty percent (50%) of the voting interests of such entity or the powers to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.
“Counterparty” |
Full legal name: |
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Postal address for legal notices: |
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Email address for legal notices: |
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“Effective Date” |
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WHEREAS, the Parties wish to pursue a business opportunity of mutual interest (the “Purpose”) and, in connection with the Purpose, each Party may disclose (“Discloser”) to the other Party (“Recipient”) certain Confidential Information (as defined below) subject to and in accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual undertakings and promises contained in this Agreement, the Parties hereby agree as follows:
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If Counterparty is domiciled in |
Governing law, excluding any conflict of laws principles or rules and without regard to the United Nations Convention on Contracts for the International Sale of Goods |
Courts with exclusive and sole jurisdiction (including non-contractual) |
JFrog entity entering into this Agreement |
I |
The USA; a country in North America, Central America, South America or the Caribbean |
State of California, USA |
The competent state or federal courts located in San Francisco, California |
JFrog, Inc.
000 X Xxxxxxxxx Xx., Xxxxxxxxx, XX 00000 |
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II |
Israel or a geographic region that does not fall into one of the designations described in this table, then Counterparty will fall into this category |
Israel
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Tel Aviv, Israel |
0 XxXxxxxxxx Xx., Xxxxxxx, Xxxxxx |
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IN WITNESS WHEREOF the Parties hereto caused this Agreement to be duly executed by their authorized representatives effective as of the Effective Date.
By: Name: Title: Date:
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EXECUTIVE
Xxxxx Xxxxxxx Xxxx:
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EXHIBIT C
GENERAL RELEASE AND WAIVER OF CLAIMS
For good and valuable consideration, as specifically set out in the Consulting Services Agreement, Xxxxx Xxxxxxx (“Executive”) for himself, and for his heirs, executors, estates, agents, representatives, attorneys, insurers, successors and assigns (collectively, the “Releasors”), hereby voluntarily releases and forever discharges JFrog Ltd., a Delaware limited liability company (“Company”), a Delaware corporation, and each of their subsidiaries (direct and indirect), affiliates, related companies, divisions, and predecessor and successor companies, and each of its and their present, former and future shareholders, officers, directors, managers, employees, agents, representatives, attorneys, insurers and assigns (collectively, the “Releasees”) from all actions, causes of action, suits, debts, sums of money, accounts, covenants, contracts, agreements, promises, damages, judgments, demands and claims which you ever had, or now have, for, upon or by reason of any matter or cause whatsoever, whether known or unknown, in law or equity, whether statutory or common law, whether federal, state, local or otherwise, including but not limited to claims arising out of or in any way related to any claims arising or relating to Executive’s employment by the Company, the termination thereof, any contract of employment, or any related matters including but not limited to claims, if any, arising under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, the Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the Americans with Disabilities Act of 1990, as amended, the Family and Medical Leave Act of 1993, the Immigration Reform and Control Act of 1986, the Employee Retirement Income Security Act (“ERISA”) of 1974, any whistleblower claims under state or federal law and any other claims under federal or state common law or any other applicable federal, state or local law, statute, regulation or ordinance, including any claims under the California Family Rights Act, the California Labor Code, the California Workers’ Compensation Act, and the California Fair Employment and Housing Act. Notwithstanding anything herein to the contrary, the general release of claims in this section does not extend to claims by Employee for: (1) unemployment compensation benefits; (2) claims for indemnification pursuant to any applicable Director and Officer insurance policies held by the Company and CA Labor Code §2802; (3) claims related to the enforcement of this Agreement; or (4) any other rights or benefits that cannot by law be released by private agreement or, as a matter of law, may not be waived, including but not limited to, unwaivable rights Employee might have under federal and/or state law.
Nothing in the General Release and Waiver of Claims (“Release”) shall preclude Executive from filing a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) or equivalent state agency or participating in or cooperating with an investigation by the EEOC or equivalent state agency, but Executive agrees that he will not be entitled to any monetary or other relief from the EEOC, state agency or from any Court as a result of litigation brought on the basis of or in connection with such charge, investigation or proceeding.
Further, nothing in this Release prohibits Executive from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department
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of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Executive does not need the prior authorization of the Company to make any such reports or disclosures and Executive is not required to notify the Company that he has made such reports or disclosures.
By signing below, Executive represents that:
If the terms of this Release are acceptable, please sign and return it either electronically via DocuSign or hard copy to the Company’s Chief Legal Officer, Xxxxxx Xxxxxx, JFrog Ltd., 000 X. Xxxxxxxxx Xx., Xxxxxxxxx, XX 00000 after the Executive’s Termination Date, but no later than January 8, 2024. Executive may not sign this Release prior to his Termination Date.
EXECUTIVE
Xxxxx Xxxxxxx
Date:
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