|
Exhibit
10.3
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive Employment
Agreement (the “ Agreement ”) is made effective
as of February 12, 2008 (the “ Effective Date
”), by and between IdentiPHI, Inc. (“ Company
”) and Peter A. Gilbert (“ Employee
”).
The parties agree as
follows:
1. Employment .
Company shall employ Employee effective as of the Effective Date,
subject to the terms and conditions set forth in the
Agreement.
2. Duties
.
2.1 Position .
Employee is employed as Vice Chairman and Senior Vice President of
Sales and Marketing, reporting to Company’s Chief Executive
Officer (the “ CEO ”), and shall have such
duties and responsibilities consistent with such position as may be
reasonably assigned from time to time.
2.2 Best Efforts;
Full-time . Employee shall faithfully and diligently perform
all duties assigned to him. Employee will expend his best efforts
on behalf of Company and will abide by all policies and decisions
made by Company, as well as all applicable federal, state and local
laws, regulations or ordinances. Employee will act in the best
interest of Company at all times. Employee shall devote his full
business time and efforts to the performance of his assigned duties
for Company, unless Employee notifies Company in advance of his
intent to engage in other paid work and receives Company’s
express written consent to do so.
2.3 Work Location .
Employee’s principal place of work shall be located in
Austin, Texas, or such other location as the parties may agree from
time to time.
3. Term . The
term of this Agreement shall begin on the Effective Date and shall
continue for two (2) years (the “Initial Term”),
unless it is terminated pursuant to Section 7 herein. On
completion of the Initial Term, this Agreement will automatically
renew for subsequent one year terms (together with the Initial
Term, the “Term”), unless either party provides
forty-five (45) days’ advance written notice to the
other that Company or Employee, as the case may be, does not wish
to renew the Agreement for a subsequent year. In the event either
party gives notice of nonrenewal pursuant to this Section, this
Agreement will expire at the end of the current Term.
4. Compensation
.
4.1 Base Salary . As
compensation for Employee’s performance of his duties
hereunder, Company shall pay to Employee a base salary of one
hundred sixty-five thousand dollars ($165,000) per year, payable in
accordance with Company’s normal payroll practices, less
required deductions for state and federal withholding tax, social
security and all other employment taxes and payroll
deductions.
4.2 Monthly Override
Commission . Employee will receive a monthly override
commission, payable in accordance with the Company’s regular
payroll practices, as set forth in the commission payment schedule
to which the Company and Employee may agree to from time to
time.
4.3 Annual Bonus .
Employee shall be eligible to receive annual corporate performance
bonuses in accordance with Company’s management incentive
plan, should Company adopt one, or else in accordance with the
terms of this Agreement. For the first year of this Agreement,
Employee shall receive a guaranteed annual corporate performance
bonus of forty thousand dollars ($40,000), which will
be payable in equal quarterly
installments on the last day of each calendar quarter beginning
with the first calendar quarter starting after the Effective Date.
In addition, for the first year of this Agreement, Employee shall
be eligible to receive an additional discretionary bonus of at
least forty-two thousand five hundred dollars ($42,500) if Employee
achieves specific performance goals as determined by the CEO with
consultation from Employee following the Effective Date under
Company’s management incentive plan. Company shall be
entitled to decrease such additional bonus by the amount Company
has already paid to Employee under this Section 4.3 for the
guaranteed annual corporate performance bonus. For the second year
of this Agreement, Employee’s annual corporate performance
bonus (a) must entitle Employee to the opportunity to receive
at least 50% of Employee’s base salary under Company’s
management incentive plan; (b) may be increased by the Board
in accordance with the terms of Company’s management
incentive plan; and (c) shall be payable (i) upon the
achievement of specific performance goals, as determined by the
Board with consultation from Employee at the beginning of the
respective year, or (ii) in accordance with Company’s
management incentive plan. The terms of any management incentive
plan must be approved by the Board.
4.4 Performance and Salary
Review . Company may periodically review Employee’s
performance. Adjustments to salary or other compensation, if any,
will be made by Company in its sole and absolute
discretion.
4.5 Employment Taxes .
All of Employee’s compensation shall be subject to customary
withholding taxes and any other employment taxes as are commonly
required to be collected or withheld by Company.
5. Benefits
.
5.1 Benefits Package .
Employee shall be entitled to an appropriate employee benefits
package, including medical, dental, vacation, sick leave and other
applicable benefits, that it is no less favorable to Employee than
the benefits package provided to current employees of Company as of
the Effective Date of this Agreement.
5.2 Fringe Benefits .
Employee will be eligible for all customary and usual fringe
benefits generally available to senior executives of Company,
subject to the terms and conditions of Company’s benefit plan
documents. Except as provided in Section 5.1, Company reserves
the right to change or eliminate the fringe benefits on a
prospective basis, at any time, effective upon notice to
Employee.
6. Expenses .
Employee will be reimbursed for all reasonable, out-of-pocket
business expenses incurred in the performance of his duties on
behalf of Company, including such housing and transportation costs
Employee may incur in connection with all travel on behalf of
Company. To obtain reimbursement, expenses must be submitted
promptly, with appropriate supporting documentation, in accordance
with Company’s policies.
7. Termination
.
7.1 Voluntary
Termination . Employee may voluntarily resign his employment
with Company as set forth in this section. Employee agrees to
provide thirty (30) days’ written notice if Employee
voluntarily terminates his employment with Company, provided that
Company may, in its sole discretion, elect to waive all or any part
of such notice period. In the event Employee’s employment is
terminated in accordance with this Section 7.1, Employee shall
be entitled to receive only unpaid base salary at the rate then in
effect, any bonus then earned and payable, if applicable, and
accrued and unused paid time off, each prorated to the date of
termination, and Company shall have no further or other obligations
to Employee pursuant to this Agreement.
2
7.2 Termination for Cause
by Company . Company may terminate Employee’s employment
immediately at any time for Cause, with or without advanced notice.
For purposes of this Agreement, “ Cause ” is
defined as a good faith determination of the Board, in its sole and
absolute discretion, of any of the following: (a) acts or
omissions constituting gross negligence, recklessness or willful
misconduct on the part of Employee; (b) Employee’s
material breach of this Agreement or the confidentiality and
inventions assignment agreement between Company and Employee (the
“ Confidentiality Agreement ”);
(c) Employee’s conviction or entry of a plea of nolo
contendere for fraud, misappropriation or embezzlement, or any
felony or crime of moral turpitude; (d) Employee’s
willful or habitual neglect of duties; (e) Employee’s
failure to perform the essential functions of his position, with or
without reasonable accommodation, due to a mental or physical
disability for at least ninety (90) days; (f) sustained
unsatisfactory performance; or (g) Employee’s death. In
the event Employee’s employment is terminated in accordance
with this Section 7.2, Employee shall be entitled to receive
only unpaid base salary at the rate then in effect, any bonus then
earned and payable, if applicable, and accrued and unused paid time
off, each prorated to the date of termination, and Company shall
have no further or other obligations to Employee pursuant to this
Agreement.
7.3 Termination Without
Cause Prior to a Change in Control . In the event that, prior
to a Change in Control (as defined in Company’s 2007 Equity
Incentive Plan (the “ 2007 Plan ”)), Employee is
terminated other than for Cause, Employee will receive
Employee’s base salary then in effect and accrued, any bonus
then earned and payable, if applicable, and unused paid time off,
each prorated to the date of termination, and, subject to the last
sentence of this Section 7.3: (a) the aggregate amount of
Employee’s base salary and annual corporate performance bonus
during the previous twelve (12) months, payable on a pro rated
basis in accordance with Company’s regular payroll cycle for
a period of twelve (12) months; (b) full acceleration of
all of the then-unvested shares subject to equity incentive awards
held by Employee; and (c) should Employee timely elect COBRA
insurance continuation coverage, reimbursement at a rate equal to
the amount contributed by Company for Employee’s insurance
coverage p
|
