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Exhibit
10.2
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 Jeffrey T. Dick (“ 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 Company’s Chief Financial Officer,
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 seventy-five thousand dollars ($175,000) 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 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. Employee’s annual corporate
performance bonus shall be a percentage of Employee’s base
salary and shall be determined by the CEO, but in any event must
entitle Employee the opportunity to receive not less than 50% of
Employee’s base salary. Each annual corporate performance
bonus shall be payable (i) upon the achievement of specific
performance goals, as determined by the CEO 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.
4.3 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.
4.4 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.
4.5 Relocation/Housing
Assistance Expenses . Company will reimburse Employee for the
reasonable expenses incurred by Employee in relocating his
residence to the Austin, Texas area, up to a maximum of twenty-five
thousand dollars ($25,000), upon presentation of appropriate
supporting documentation. Eligible expenses shall be: temporary
living expenses, fees associated with the sale of Employee’s
home in the Seattle, Washington area, travel for Employee and his
immediate family between the Seattle, Washington area and the
Austin, Texas area, and moving Employee’s household goods
from the Seattle, Washington area to the Austin, Texas area.
Employee will be required to reimburse Company immediately for all
relocation/housing assistance expenses paid to him or on his behalf
if, within one (1) year from the Effective Date, Employee
voluntarily terminates his employment or Company terminates
Employee for Cause.
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 Employee 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. Business
Expenses . Employee will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of his
duties 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.
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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 CEO, 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 premium effective as of the date of termination or
resignation for twelve (12) months following termination or
resignation. Employee’s receipt of the severance,
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