EXHIBIT 10.16
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
amended and restated
employment agreement
(the "Agreement") is made
and entered into effective as of October 1, 2007 (the "Effective
Date"), by and
between Paul
DePond ("Employee") and Notify Technology Corporation (the
"Company").
RECITALS
A. The
Company desires to
retain the services of
Employee, and
Employee
desires to be employed by the Company, on the terms and conditions set
forth in
this Agreement.
B. Certain
capitalized terms used
in the Agreement are defined in Section
8 below.
In
consideration
of the mutual covenants herein contained, and in
consideration of the
continuing
employment
of Employee by the
Company, the
parties agree as follows:
1. Duties
and Scope of Employment.
(a) Position. The
Company shall employ
Employee in the position of
Chairman,
President and
Chief Executive Officer, with such duties,
responsibilities and
compensation
as in effect as of the Effective Date;
provided, however,
that the Company's
Board of Directors
(the "Board")
shall
have the right, prior
to the occurrence of a Change of Control, to revise such
responsibilities and
compensation
from time to time as the Board may deem
necessary of appropriate.
(b) Obligations. Employee shall devote his full business efforts
and
time to the Company and its subsidiaries. The foregoing, however, shall not
preclude Employee
from engaging in such activities and services as do not
interfere or conflict with his responsibilities to the Company.
2. At-Will
Employment.
The Company and
Employee acknowledge
Employee's
employment is and shall continue to be at-will, as defined under
applicable law.
If Employee's
employment
terminates
for any reason, Employee shall not be
entitled to any payments, benefits, damages, awards or compensation
other than
as provided by this
Agreement, or as may
otherwise be available
in accordance
with the Company's
established employee plans and practices or other agreements
with the Company at the time of termination.
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EXHIBIT 10.16
3.
Compensation and Benefits.
(a) Base Compensation. The Company shall pay Employee as
compensation for services a base salary at an annualized rate of
$255,000. Such
salary shall be reviewed at least annually and shall be increased
from time to
time subject to
accomplishment of such
performance and contribution goals and
objectives as may be
established
from time to time by
the Board. Such
salary
shall be paid periodically in accordance with normal Company
payroll. The annual
compensation specified in this Section 3(a), together with any
increases in such
compensation that the
Board may grant from time to time, is referred to in this
Agreement as "Base Compensation".
(b) Bonus. Beginning
with the Company's current fiscal year and for
each fiscal year thereafter during the term of this Agreement,
Employee shall be
eligible to receive an annual bonus (the "Bonus") based upon
targets approved by
the Board. The Bonus
payable hereunder
shall be payable in accordance with the
Company's normal practices and policies.
(c) Employee Benefits.
Employee shall be eligible to participate in
the employee benefit plans and employee compensation programs maintained
by the
Company applicable
to other key employees
of the Company,
including (without
limitation) life, disability, health, accident and other insurance
programs, and
paid vacations,
subject in each case to the generally applicable terms and
conditions of the plan
or program in question and to the determination of any
committee
administering such plan or program. In addition, all dental expenses
by Employee
and Employee's family shall be reimbursed to Employee by the
Company. Employee
shall be eligible for
thirty (30) days of Personal Time Off
(PTO) per year, which shall accrue monthly. In addition,
all expenses
regarding
state and federal income tax preparation shall be reimbursed to
Employee.
(d) Expenses.
The Company will pay or reimburse Employee for
reasonable travel,
entertainment or other
expenses incurred by Employee in the
furtherance of or in
connection
with the performance of Employee's duties
hereunder in accordance with the Company's established policies.
Employee shall
furnish the Company
with the evidence of such expenses within a reasonable
period of time from the date that they were incurred.
4.
Severance Benefits.
(a)
Termination
Following A Change of Control. If Employee's
employment with the
Company terminates at any time within twenty-four (24)
months after a Change of Control, then, subject to Section 5,
Employee shall be
entitled to receive severance benefits as follows:
(i) Involuntary
Termination.
If Employee's employment
terminates as a result of an Involuntary Termination (as defined in Section 8)
other than for Cause (as defined in Section 8), then Employee
shall be entitled
to receive (i) a continuation of Employee's Base Compensation for a
period equal
to eighteen (18) months and (ii) the maximum amount of Employee's
Bonus for the
fiscal year in which such Involuntary Termination occurs that could have been
received by Employee had Employee satisfied all conditions necessary to earn
such maximum amount of the Bonus during the remainder of such
fiscal year.
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EXHIBIT 10.16
(ii) Voluntary Resignation; Termination for Cause. If Employee
voluntarily terminates employment with the Company, other than as a
result of an
Involuntary
Termination, or if
Employee is terminated for Cause, then Employee
shall not be entitled to receive severance or other benefits except for those
(if any) as may then be established under the Company's then
existing severance
and benefits plans and policies at the time of such
termination.
(iii) Disability:
Death. If the Company terminates Employee's
employment as a result of Employee's Disability, or such Employee's employment
is terminated
due to the death of
Employee, then,
except as provided
below,
Employee shall not be
entitled to receive
severance or other
benefits except
those (if any) as may then be established under the Company's then existing
severance and
benefits plans and policies at the time of such Disability.
Notwithstanding the foregoing, if Employee's employment is
terminated due to the
death of Employee,
then Employee
shall be entitled to
receive a one-time cash
payment equal to (i) the aggregate amount of Employee's Base
Compensation for a
period equal to twelve (12) months minus (ii) the aggregate amount
that Employee
is entitled to receive under the Company-paid life insurance
policy.
(b) Termination Apart from Change of Control. If, during the term
of
this Agreement,
Employee's employment with the Company terminates, either prior
to the occurrence
of a Change of Control
or after the
twenty-four (24)
month
period following a Change of Control, then Employee shall be
entitled to receive
severance benefits as follows:
(i) Involuntary
Termination.
If Employee's employment
terminates as a result of Involuntary Termination other than for Cause, then
Employee shall be
entitled to receive (i) a continuation of Employee's Base
Compensation for a
period equal to twelve
(12) months and (ii) the maximum
amount of Employee's Bonus for the fiscal year in which such Involuntary
Termination occurs
that could have been
received by Employee had Employee
satisfied all
conditions
necessary to earn such
maximum amount of the Bonus
during the remainder of such fiscal year.
(ii) Voluntary Resignation; Termination for Cause. If Employee
voluntarily terminates employment with the Company, other than as a
result of an
Involuntary
Termination, or if
Employee is terminated for Cause, then Employee
shall not be entitled to receive severance or other benefits except for those
(if any) as may then be established under the Company's then
existing severance
and benefits plans and policies at the time of such
termination.
(iii) Disability;
Death. If the Company terminates Employee's
employment as a result of Employee's Disability, or such Employee's employment
is terminated
due to the death of
Employee, then,
except as provided
below,
Employee shall not be
entitled to receive
severance or other
benefits except
those (if any) as may then be established under the Company's then existing
severance and
benefits plans and policies at the time of such Disability.
Notwithstanding the foregoing, if Employee's employment is
terminated due to the
death of Employee,
then Employee
shall be entitled to
receive a one-time cash
payment equal to (i) the aggregate amount of Employee's Base
Compensation for a
period equal to twelve (12) months minus (ii) the aggregate amount
that Employee
is entitled to receive under the Company-paid life insurance
policy.
<PAGE>
EXHIBIT 10.16
(c)
Benefits. In the event Employee is entitled to
severance benefits
pursuant to Section
4(a)(i) or Section 4(b)(i), then in addition to such
severance benefits, Employee shall receive (i) 100% Company-paid
dental and life
insurance coverage as
provided to
Employee, and Employee's dependents, if
applicable, immediately prior to Employee's termination, (ii)
reimbursement from
the Company for all
premium payments paid by Employee under COBRA ("COBRA
Payments") for continuing health insurance coverage as provided to
Employee, and
Employee's
dependents, if
applicable,
immediately
prior
to Employee's
termination (collectively, the "Company-Paid Coverage"),
provided, however,
at
the election of Employee and in lieu of such reimbursements from
the Company for
COBRA Payments,
Employee may receive a one-time cash payment equal to the total
amount of the COBRA
Payments Employee
would be required to
make for eighteen
(18) months following such termination for continuing health
insurance coverage
at the same coverage level as provided to Employee, and Employee's dependents,
if applicable,
immediately
prior to Employee's termination, and (iii)
outplacement services
for a period of up to six (6) months following Employee's
termination; provided,
however, that the maximum amount of fees and expenses
that the Company shall
be obligated to pay for such services shall be $9,000.
Company-Paid Coverage
shall continue until the earlier of (i) eighteen
(18)
months following
termination in the case of a termination described in Section
4(a)(i) or Section
4(b)(i), or (ii) the
date Employee
becomes covered under
another employer's
group health,
dental or life
insurance plan (to the extent
covered under
such plans). In addition, without regard to the reason for
termination of
Employee's
employment:
(i) the Company shall
pay Employee any
unpaid salary and Bonus due for periods prior to the Termination
Date; (ii) the
Company shall pay Employee all of Employee's accrued and unused PTO through
the
Termination Date; and
(iii) following
submission of proper
expense reports by
Employee, the Company
shall reimburse Employee for all expenses reasonably and
necessarily incurred
by Employee in connection with the business of the Company
prior to termination. These payments shall be made promptly upon
termination and
within the period of time mandated by law.
(d)
Restricted
Stock; Options. In the event Employee is entitled to
severance benefits
pursuant to Section 4(a)(i) or Section 4(b)(1) of this
Agreement, then (i)
all Company
stock purchased by Employee subject to a
repurchase right in
favor of the Company
shall vest and any such repurchase
right shall lapse, and (ii) all options to purchase capital stock
of the Company
held by Employee at the Termination Date (the "Options") shall fully vest upon
the Termination
Date and Employee
shall have the right to exercise the Options
as to all of the shares of capital stock underlying the Options, including
shares of capital stock which would not otherwise be vested or
exercisable,
in
accordance with the terms of the applicable option agreement
relating to each of
the Options.
<PAGE>
EXHIBIT 10.16
5.
Limitations
on Payments.
In the event that the
severance and other
benefits provided for
in this Agreement
or otherwise
payable to Employee
(i)
constitute "parachute
payments" with in the meaning of Section 280G of the
Internal Revenue
Code of 1986,
as amended
(the "Code") and (ii)
but for this
Section, would be subject to the excise tax imposed by Section 4999
of the Code,
then Employee's
severance benefits under Section 4(a)(i), as applicable,
shall
be payable to the extent such payment, after taking into account the
applicable
federal, state and
local income
taxes and the excise
tax imposed by Section
4999, results in the
receipt by Employee on an after-tax basis, of the greatest
amount of severance benefits under Section 4(a)(i), notwithstanding that all or
some portion of such severance benefits may be taxable under
Section 4999 of the
Code. Unless
the Company and Employee otherwise agree in writing, any
determination required
under this Section shall be made in writing by the
Company's independent public accountants (the "Accountant"), whose
determination
shall be conclusive
and binding upon Employee and the Company for all purposes.
For the purposes
of making calculation required by this Section 5, the
Accountants may
make reasonable assumptions and approximations concerning
applicable tax
