EMPLOYMENT
AGREEMENT
This Employment
Agreement (“Agreement”) is effective as of January 15,
2009, by and between Louis E. Ryan ("Employee”) and St.
Bernard Software, a Delaware corporation (“Employer”),
located at 15015 Avenue of Science, San Diego, CA 92128.
W I T N E S S E T H
:
WHEREAS,
Employer desires to retain the services of Employee and Employee
desires to be employed by Employer upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, In consideration of the premises
and the agreements, provisions and covenants herein contained,
Employee and Employer agree as follows:
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Services;
Title . Employee shall be employed as
Chief Executive Officer and Chief Financial Officer (the
“Title”) and shall fully and faithfully perform such
services as Employer shall reasonably request to be performed (the
"Services"). The position shall report directly to the Board of
Directors .
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Compensation, Benefits and Reviews
. Subject to all the
other terms of this Agreement, in connection with Employee's
performance of the Services, Employer shall:
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Pay Employee's
salary by check or direct deposit twice per month in equal
installments in accordance with Employer's regular salary payment
schedule, which shall be paid at the rate of $9,375 (before
deductions made at Employee's request, if any, and for deductions
required by federal, state and local law) semi-monthly.
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Pay Employee a
quarterly performance bonus (if any), not to exceed $100,000 in the
aggregate, based on specific performance targets set forth in the
bonus plan established by the board of directors and attached
hereto as Exhibit C .
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Employee will
be granted 165,000 non-qualified stock options to vest in equal
installments of 1/36 per month over a three (3) year period,
starting on the date of the grant, and until such options are
vested in full. The stock options’ exercise price
will be priced at the closing share price on the date of grant and
will be subject to Employee signing Employer’s form stock
option agreement. The stock options shall be governed by the
St. Bernard Software, Inc. 2005 Stock Option Plan, as it may
be amended from time to time.
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Grant Employee
the option to participate in the benefit plans offered by Employer,
including without limitation, insurance plans, 401(k) and other
savings plans, short and long term disability insurance, Section
125 (cafeteria) and similar pre-tax expense plans, holidays, PTO-
Personal Time Off, etc., which may be amended from time to time in
Employer’s discretion.
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Participate in
health insurance for Employee and Employee’s dependents, and
such other benefits as Employer shall determine to provide to all
of its employees from time to time.
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Reimburse
Employee for all reasonable travel, meals, lodging, communications,
entertainment and other business expenses incurred by Employee in
connection with Employee’s employment.
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Grant Employee
four (4) weeks vacation with pay for each twelve-month
period, to be taken at times agreed with
Employer. Unused vacation shall accrue according to the
Employer’s accrued vacation policy, as may be amended from
time to time.
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Term and
Termination . (a) The
term of this Agreement shall be for a period of twelve (12) months
(the “Initial Term”). Unless the parties enter into a
new contract before the expiration of the Initial Term then
Employee’s employment shall continue on an
“at-will” basis.
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Termination
Without Cause. In the event that during the
Initial Term Employee shall be terminated by Employer without
“Cause” or terminated following a Change of Control (as
defined below) or if the Board of Directors appoints a permanent
Chief Executive Officer to replace Employee, then Employee shall
receive from Employer, with appropriate deductions and
withholdings, the compensation required by Paragraph 2(a) for the
remaining term of the Initial Term (the “Severance
Period”) following the date of such termination (the
“Severance”), plus all accrued but unpaid salary and
vacation time and any applicable quarterly bonus which has been
earned but not yet paid to the date of termination. In
addition, the vesting of Employee’s stock options shall
accelerate. In no event will the Severance Period be longer than
six (6) months. The foregoing Severance shall be reduced
by the amount of any other compensation earned by the Employee
during the Severance Period as a result of his employment.
Employee’s eligibility for Severance is conditioned on
Employee having first signed a release agreement in the form
attached as Exhibit B and a termination certificate as
provided for in Paragraph 4 in the form of Exhibit A
.
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Termination For Cause. Upon termination of Employee's
employment with Employer for “Cause”, Employer shall be
under no further obligation to Employee for salary or other
compensation, except to pay all accrued but unpaid salary and
accrued vacation time up to the date of termination. For
purposes of this Agreement, “Cause” shall mean that
Employee: has been negligent in the discharge of his or her duties
to Employer or has acted in a manner constituting gross negligence
or willful misconduct; has been dishonest or committed or engaged
in an act of theft, embezzlement or fraud, a material breach of
confidentiality, an unauthorized disclosure or use of inside
information, customer lists, trade secrets or other confidential
information; has breached a fiduciary duty; has been convicted of,
or plead guilty or nolo contendere to a felony or a misdemeanor
(other than minor traffic violations or similar offenses) injurious
to the reputation, business or assets of Employer; has materially
breached any of the material provisions of this Agreement; has
engaged in unfair competition with, or otherwise acted
intentionally in a manner injurious to the reputation, business or
assets of, Employer or an affiliate; has materially violated
Employer’s policies and procedures, and specifically a
violation of Employer’s sexual harassment and/or
anti-discrimination policies, or a violation of Employer’s
trade secrets policies, or use or disclosure of Employer’s
trade secrets for personal gain; or has improperly induced a vendor
or customer to break or terminate any contract with Employer or an
affiliate or induced a principal for whom Employer or an affiliate
acts as agent to terminate such agency relationship.
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Change of Control. Change of Control, for purposes of this
Agreement, means a change in the ownership or control of the
Company (where the consideration paid exceeds one dollar ($1) for
each share of Employer’s common stock) affected through any
one of the following transactions:
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(i) a merger or
consolidation approved by the Company’s stockholders in which
securities possessing more than fifty percent (50%) of the total
combined voting power of the Company’s outstanding securities
are transferred to a person or persons different from the persons
holding those securities immediately prior to such
transaction;
(ii) any
stockholder-approved sale, transfer or other disposition of all or
substantially all of the Company’s assets in a complete
liquidation or dissolution of the Company; or
(iii) the
acquisition, directly or indirectly, by any person or related group
of persons (other than the Company or a person that directly or
indirectly controls, is controlled by or is under common control
with, the Company) of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Act of 1934, as amended)
of securities possessing more than fifty percent (50%) of the total
combined voting power of the Company’s outstanding securities
pursuant to a tender or exchange offer made directly to the
Company’s stockholders;
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Termination
Certificate. Upon the termination of Employee's
engagement under this Agreement, for any reason whatsoever,
Employee agrees to sign, date and deliver to Employer a
"Termination Certificate" in the form of Exhibit A , and to
deliver and take all other action necessary to transfer promptly to
Employer all records, materials, equipment, drawings, documents and
data of any nature pertaining to any invention, trade secret or
confidential information of Employer or to Employee's engagement,
and Employee will not take with Employee any documents containing
or pertaining to any confidential information, knowledge or data of
Employer that Employee may produce or obtain during the course of
Employee's engagement under this Agreement. This Paragraph 4 shall
survive indefinitely any termination of this Agreement or
Employee's employment.
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Nondisclosure. Employee agrees to keep confidential
and not to disclose or make any use of (except for the benefit of
Employer), at any time, either during or after Employee’s
engagement under this Agreement, any trade secrets, confidential
information, knowledge, data or other information of Employer
relating to products, processes, know-how, designs, formulas, test
data, customer lists, business plans, marketing plans and
strategies, pricing strategies or other subject matters pertaining
to any business or future business of Employer or any of its
clients, customers, Employees, licensees or affiliates, which
Employee may produce, obtain or otherwise acquire or become aware
of during the course of Employee’s engagement under this
Agreement. Employee further agrees not to deliver, reproduce or in
any way allow any such trade secrets, confidential information,
knowledge, data or other information, or any documentation relating
thereto, to be delivered or used by any third party without
specific direction or consent of a duly authorized officer of
Employer. This Paragraph 5 shall survive indefinitely any
termination of this Agreement or Employee's employment.
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Work for
Hire; Ownership of Intellectual Property . Employee understands and agrees that all of
Employee’s work and the results there arising out of or in
connection with the work performed for Employer, whether made
solely by Employee or jointly with others, during the period of
Employee's employment by Employer, that relate in any manner to the
actual or anticipated business, work, activities, research or
development of Employer or its affiliates, or that result from or
are suggested by any task assigned to Employee or any activity
performed by Employee on behalf of Employer, shall be the sole
property of the Employer, and, to the extent necessary to ensure
that all such property shall belong solely to the Employer,
Employee by Employee’s execution of this Agreement transfers
to the Employer any and all right and interest Employee may possess
in such intellectual property and other assets created in
connection with Employee’s employment by Employer, and that
may be acquired by Employee during the term of this Agreement from
any source that relates, directly or indirectly, to Employer's
business and future business. Employee also agrees to
take any and all actions requested by Employer to preserve
Employer's rights with respect to any of the foregoing. This
Paragraph 6 shall survive indefinitely any termination of this
Agreement or Employee's employment.
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No
Partnership; Not Assignable by Employee . This Agreement is between Employee and
Employer, as at-will employer, and shall not form or be deemed to
form a partnership or joint venture. Employer’s rights,
benefits, duties and obligations under this Agreement shall inure
to its successors and assigns. Employee's rights, obligations and
duties under this Agreement are personal to Employee and may not be
assigned.
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Trade
Secrets of Others :
Employee represents that Employee’s performance of all the
terms of this Agreement and as the Employer’s Employee does
not, and will not breach any agreement to keep in confidence any
proprietary information, knowledge or data acquired by Employee in
confidence or in trust before Employee’s engagement under
this Agreement, and Employee will not disclose to Employer or
induce Employer to use any confidential or proprietary information
or material belonging to any other person or entity. Employee
agrees not to enter into any agreement, either written or oral, in
conflict with this Paragraph 8.
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Employee's
Representations and Warranties . Employee represents, promises, understands and
agrees that: (i) Employee is free to enter into this Agreement;
(ii) Employee is not obligated or a party to any engagement,
commitment or agreement with any person or entity that will, does,
or could conflict with or interfere with Employee's full and
faithful performance of this Agreement, nor does
Employee have any commitment, engagement or agreement of any kind
requiring Employee to render services or preventing or restricting
Employee from rendering services or
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