Exhibit
10.36
EMPLOYMENT
AGREEMENT
THIS AGREEMENT (the “
Agreement ”) is made as of April 3, 2006, among
Syniverse Technologies, Inc., a Delaware corporation (the “
Company ”), Syniverse Holdings, Inc., a Delaware
corporation (“ Parent ”), and Nancy J. White
(“ Executive ”).
WHEREAS, the services of Executive
and her managerial and professional experience are of value to the
Company; and
WHEREAS the Company desires to
employ Executive as its Executive Vice President and Chief
Marketing Officer upon the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of
the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment . The Company
shall employ Executive, and Executive hereby accepts employment
with the Company, upon the terms and conditions set forth in this
Agreement. The effective date of this Agreement shall be
April 3, 2006 (the “ Effective Date ”). The
term of Executive’s employment under this Agreement (the
“ Employment Period ”) shall end upon the
termination of Executive’s employment with the Company in
accordance with the terms hereof.
2. Position and Duties.
(a) During the Employment Period,
Executive shall serve as an Executive Vice President and the Chief
Marketing Officer of the Company and Parent and shall have the
normal duties, responsibilities, functions and authority of such
position, subject to the power and authority of the Company’s
Board of Directors (the “ Board ”) and the
Company’s Chief Executive Officer and President to expand or
limit such duties, responsibilities, functions and authority and
the power and authority of the Board to overrule actions of
officers of the Company; provided that such permitted
limitations may, nevertheless, constitute “Good Reason”
under Section 8 . During the Employment Period,
Executive shall render such administrative, marketing and other
executive and managerial services to the Company and its Affiliates
which are consistent with Executive’s position as the Board
may from time to time direct.
(b) During the Employment Period,
Executive shall report to the Chief Executive Officer and President
of the Company and shall devote her best efforts and her full
business time and attention (except for permitted vacation periods
and reasonable periods of illness or other incapacity) to the
business and affairs of the Company and its Affiliates. Executive
shall perform her duties, responsibilities and functions to the
Company and its Affiliates hereunder to the best of her abilities
in a diligent, trustworthy, professional and efficient manner and
shall comply with the Company’s and its Affiliates’
policies and procedures in all material respects. In performing her
duties and exercising her authority under the
1
Agreement, Executive shall develop, support and
implement the business and strategic plans approved from time to
time by the Board. During the Employment Period, Executive shall
not accept other employment, serve as an officer or director of, or
otherwise perform services for compensation for, any other entity
without the prior written consent of the Board; provided
that Executive may serve as a director of Legerity, a
semi-conductor manufacturer located in Austin, Texas, and may serve
as an officer or director of or otherwise participate in purely
educational, welfare, social, religious and civic organizations so
long as such activities do not interfere with Executive’s
employment. The Company and Executive agree that Executive’s
principal location of employment with the Company shall be at the
Company’s headquarters in Tampa, Florida and Executive agrees
to use best efforts to establish primary residence in the Tampa,
Florida area within six (6) months following the Effective
Date.
3. Compensation and
Benefits.
(a) During the Employment Period,
Executive’s base salary shall be Three Hundred Thousand
Dollars ($300,000) per annum (as adjusted from time to time as
provided below, the “ Base Salary ”), which
salary shall be payable by the Company in regular installments in
accordance with the Company’s general payroll practices (in
effect from time to time). The Compensation Committee of the board
of directors of Parent (the “ Compensation Committee
”) shall review the Base Salary each year during the Term
hereof, and Executive may receive increases in her Base Salary from
time to time, based upon her performance, subject to approval of
the Compensation Committee. In addition, during the Employment
Period, Executive shall be entitled to participate in the
Company’s employee benefit programs for which other senior
executive employees of the Company are generally eligible. The
Company reserves the right to cancel or change the benefit plans
and programs it offers to its employees at any time.
(b) In addition to Base Salary,
Executive will have an opportunity to earn a cash bonus each year,
commencing with calendar year 2006, as determined by the
Compensation Committee, with a target annual bonus equal to
sixty-five percent (65%) of Executive’s Base Salary (the
“ Target Bonus ”) based upon the achievement
with respect to any calendar year of performance objectives as
approved by the Compensation Committee (the “ Target Bonus
Objectives ”), or (ii) a maximum annual bonus, as
determined by the Compensation Committee in it sole discretion, of
up to one hundred percent (100%) of Executive’s Base
Salary if the Compensation Committee determines that Executive and
the Company have substantially exceeded the Target Bonus
Objectives. The Target Bonus Objectives will be financial and other
objective targets that the Compensation Committee reasonably
believes are reasonably attainable at the time that they are set.
Such bonus amounts, if any, shall be payable within 100 days
following the end of each calendar year at such time as other
executive officer bonuses are paid and, except as otherwise
provided in Section 4 , so long as Executive remains in
the employ of the Company on December 31 of such calendar
year.
(c) Subject to the approval by the
stockholders of Parent of the Syniverse Holdings, Inc. 2006
Long-Term Equity Incentive Plan (the “ Plan ”),
within three business days following such stockholder approval and
on each subsequent anniversary of the Effective Date, so long as
Executive remains in the employ of the Company on each such date
(each, an “ Issuance Date ”), up to and
including the fourth anniversary of the Effective Date,
Executive
2
shall be granted a nonqualified option under the
Plan (the “ Options ”) to purchase 40,000 shares
of Syniverse Holdings, Inc. common stock, par value $.001 per share
(the “ Common Stock ”), resulting in grants of
Options to purchase a total of 200,000 shares of Common Stock. The
per share exercise price shall be the closing price of the Common
Stock on the applicable Issuance Date and, each Option shall vest,
subject to Executive’s continued employment on the applicable
vesting dates, in three equal annual installments of 33
1
/ 3 % commencing on the first
anniversary of the Effective Date. Each Option will have a term of
ten (10) years, subject (except as otherwise provided in or
pursuant to Sections 4(b), 4(d) or 4(e) ) to earlier
expiration in the event of the termination of Executive’s
employment.
(d) Subject to the approval by the
stockholders of Parent of the Plan, within three business days
following such stockholder approval Executive shall be granted a
one-time restricted stock award (the “ Restricted Stock
Grant ”) of 40,000 shares of Common Stock. Except as
otherwise provided in or pursuant to Sections 4(b), 4(d) or
4(e) , the Restricted Stock Grant shall vest in five equal
annual installments (i.e., 20% of the shares subject to the award)
on each of the first, second, third, fourth and fifth anniversary
of the Effective Date, so that the Restricted Stock Grant will be
fully vested and exercisable five (5) years from the Effective
Date, subject (except as otherwise provided in or pursuant to
Sections 4(b), 4(d) or 4(e) ) to Executive’s continued
employment with the Company on the relevant vesting dates. No right
to any restricted stock shares subject to the award received by the
Executive shall be earned or accrued except at such times and to
such extent as vesting of such respective shares occurs pursuant to
the terms of this Agreement. Subject to the terms of this
Agreement, the shares subject to the Restricted Stock Grant shall
be evidenced by the Company’s standard form of restricted
stock agreement.
(e) The Company shall reimburse
Executive for all reasonable business expenses incurred by her in
the course of performing her duties and responsibilities under this
Agreement which are consistent with the Company’s policies in
effect from time to time with respect to travel, entertainment and
other business expenses, subject to the Company’s
requirements with respect to reporting and documentation of such
expenses. Notwithstanding any Company policy to the contrary,
Executive’s international travel shall be Business Class (or,
if Business Class is not available, First Class) and her domestic
travel shall be First Class.
(f) On or as soon as reasonably
practicable following the Effective Date, Executive will receive a
one-time bonus payment of $150,000, payable in accordance with the
Company’s customary payroll practice, as compensation or
reimbursement for all moving, transition and relocation expenses
and legal expenses incurred in connection with this
Agreement.
(g) The Company shall provide
Executive with a housing allowance to be used by Executive to
defray the cost of Executive’s housing in the Tampa Bay area
as follows: (i) $2,000 per month for the first eighteen
(18) months of Executive’s employment with the Company,
and (ii) $1,000 per month for the second eighteen
(18) months of Executive’s employment with the
Company.
3
(h) All amounts payable to Executive
as compensation hereunder, including, without limitation, the
Options and the Restricted Stock Grant, shall be subject to all
required and customary withholding by the Company as provided in
Section 18 herein.
4. Termination.
(a) Executive’s employment
with the Company may be terminated for Cause at any time by the
Company. Upon such a termination, the Company shall have no
obligation to Executive other than the payment of Executive’s
earned and unpaid compensation to the effective date of such
termination and as provided in Section 4(g)
.
(b) If during the Employment Period,
Executive shall become ill, mentally or physically disabled, or
otherwise incapacitated so as to be unable regularly to perform the
duties of her position for a period in excess of twelve
(12) weeks (“ Permanent Disability ”), then
the Company shall have the right to replace the Executive. If the
Executive maintains the Permanent Disability for a period exceeding
twenty-six weeks then the Company shall have the right to terminate
Executive’s employment with the Company upon written notice
to Executive. In the event of Executive’s death or in the
event the Company terminates Executive’s employment as a
result of her Permanent Disability, Executive or Executive’s
estate shall be entitled to the benefits that she would have been
entitled to receive if Executive’s employment had been
terminated by the Company without Cause pursuant to
Section 4(d) (subject to the provisos and conditions
set forth therein); provided , however , that, except
as provided in Section 4(g) , the Company shall have no
other obligation to Executive or Executive’s estate pursuant
to this Agreement in the event of Executive’s death or in the
event that Executive’s employment with the Company is
terminated as a result of her Permanent Disability.
(c) Executive may voluntarily resign
from her employment with the Company without Good Reason, provided
that Executive shall provide the Company with thirty (30) days
advance written notice (which notice requirement may be waived, in
whole or in part, by the Company in its sole discretion) of her
intent to terminate. Upon such a termination, the Company shall
have no obligation other than the payment of Executive’s
earned but unpaid compensation to the effective date of such
termination and as provided in Section 4(g)
.
(d) Executive’s employment
with the Company may be terminated at any time by the Company
without Cause. If the Company terminates Executive’s
employment without Cause, the Company shall have the following
obligations to Executive (but excluding any other obligation,
except as provided in Section 4(g) , to Executive
pursuant to this Agreement):
(i) The continuation of her Base
Salary, as severance, payable in accordance with the
Company’s general payroll practices (in effect from time to
time) for a period commencing on the date of termination and ending
12 (twelve) months from the date of termination (the “
Severance Period ”);
(ii) Executive shall be entitled to
receive any unpaid Target Bonus, if any, for the previous fiscal
year and a pro rata portion of the Target Bonus, if any, for the
then current fiscal year, such amounts to be payable at such times
as they would be payable if Executive’s employment had not
been terminated;
4
(iii) If Executive makes a timely
election for COBRA with respect to the health, medical, dental,
life and disability plans provided to Executive at the time of such
termination (the “ Welfare Plans ”), the Company
shall pay that portion of the COBRA premium that the Company pays
for active employees with the same coverage for the shorter of
(A) twelve (12) months and (B) the period that
Executive is eligible for COBRA; and
(iv) The exercise period with
respect to all vested Options not previously exercised shall extend
for a period of 180 days following the termination of employment
but not beyond their initial ten-year term;
provided , however , that the continuation of such
salary and benefits shall cease on the occurrence of any
circumstance or event that would constitute Cause under
Section 8 (including any material breach of the
covenants contained in Section 5 or
Section 6 below; provided further , that
Executive’s eligibility to participate in the Welfare Plans
shall cease at such time as Executive is offered comparable
coverage with a subsequent employer.
(e) Executive’s employment
with the Company may be terminated by Executive for Good Reason on
thirty (30) days advance written notice to the Company, which
notice shall detail the specific basis for such termination. The
Company shall be given the opportunity to cure the basis for such
termination within such thirty (30) day period. If Executive
terminates her employment under this Section 4(e) ,
Executive shall be entitled to receive the same benefits as if her
employment had been terminated by the Company without Cause under
Section 4(d) (subject to the provisos and conditions
set forth therein).
(f) Notwithstanding the foregoing,
if Executive is a “specified employee” within the
meaning of Section 416(i) of the Internal Revenue Code and
Proposed Treasury Regulation § 1.409A-1(i) and exemptions
under Proposed Treasury Regulation § 1.409A are not
applicable to any such payment, payments under
Section 4(d)(i) and (iii), whether payable by reason of
Section 4(b) , 4(d) or 4(e) , may not be
made before the date that is six months after the termination of
Executive’s employment with the Company (or, if earlier, the
date of death of the specified employee). In such case, all
payments to which Executive is entitled during the first six months
shall be accumulated and paid on the first day of the seventh month
following the termination of Executive’s employment with the
Company.
(g) Executive acknowledges that any
payments and benefits under this Section 4 resulting
from a termination of Executive’s employment with the Company
are in lieu of any and all claims that Executive may have against
the Company and its Affiliates (other than (i) benefits under
the Company’s employee benefit plans, including the Plan,
that by their terms survive termination of employment,
(ii) benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, (iii) rights with
respect to unreimbursed business expenses, if any, pursuant to
Section 3(e) and (iv) rights to indemnification
under certain indemnification arrangements for officers of the
Company, and represent liquidated damages (and not a penalty). The
Company may require that the Executive execute and not revoke a
release of claims in a form provided by the Company as a condition
to Executive’s receipt of such payments. The Company
acknowledges that no such payment shall be reduced by any amount
Executive may earn or receive from employment or other source after
the Separation and that Executive shall have no obligation to seek
other employment or otherwise to mitigate the Company’s
payment obligations.
5
5. Confidential Information
.
(a) Obligation to Maintain
Confidentiality . Executive acknowledges that the information
and data obtained by her during the course of her performance under
this Agreement concerning the business and affairs of the Company,
Parent and their respective Subsidiaries and Affiliates, including
information concerning acquisition opportunities in or reasonably
related to the Company’s and Parent’s and their
respective Subsidiaries’ business or industry of which
Executive becomes aware during the Employment Period (collectively,
“ Confidential Information ”), are the property
of the Company, Parent or such Subsidiaries and Affiliates.
Therefore, Executive agrees that she will not disclose to any
unauthorized Person or use for her own account any Confidential
Information without the Board’s prior written consent.
Executive agrees to deliver to the Company at a Separation, or at
any other time the Company may request in writing, all memoranda,
notes, plans, records, reports and other documents (and copies
thereof) relating to the business of the Company, Parent and their
respective Subsidiaries and Affiliates (including, without
limitation, all acquisition prospects, lists and contact
information) which she may then possess or have under her control.
Notwithstanding the foregoing, the restrictions contained herein
shall not apply to any information which Executive can demonstrate
by written record (i) was already available to the public,
otherwise than by breach of this Agreement, or (ii) was the
subject of a court order for Executive to disclose, provided that
Executive shall give the Company prompt notice of any and all such
requests for disclosure so that it may take all necessary or
desired action to avoid or limit disclosure.
(b) Ownership of Property .
Executive acknowledges that all inventions, innovations,
improvements, developments, methods, processes, programs, designs,
analyses, drawings, reports, and all
