January 24th, 2006 Mr. Mark E. Gitter
January
24th,
2006
Xx.
Xxxx
X. Xxxxxx
000
X.
Xxxxx Xxxxxx
Sunnyvale,
CA 94086
000-000-0000
Dear
Xxxx:
We
are
very pleased to invite you to join Wherify Wireless, Inc. (the “Company”). This
letter shall serve to set forth the terms of employment offered to you by the
Company and to acknowledge your acceptance of the employment on such terms
as
detailed below. This letter (“Agreement”) shall become effective upon the
mutually agreed upon start date of your employment with the
Company.
Duties
and Responsibilities.
You
shall
serve as Treasurer and Chief Financial Officer of the Company, with functional
responsibility over the Company’s financial, human resources and investor
relations’ functions. You shall render such business and professional services
in the performance of your duties, consistent with your position and the Bylaws
of the Company and as shall reasonably be assigned to you by the Company’s Chief
Executive Officer and/or the Board of Directors. You shall report directly
to
the Chief Executive Officer. This offer is for a full time position, located
at
the headquarters of the Company in Redwood Shores, California. The position
may
require you to travel to other locations as may be necessary to fulfill your
responsibilities. A performance review will occur annually.
Compensation.
During
the period beginning as of the Effective Time the Company shall pay you as
compensation for your services an initial monthly base salary of $14,583.33.
This equates to a base compensation annualized rate of $175,000. Thereafter,
your compensation shall be subject to periodic review and adjustment, at least
annually, by the Chief Executive Officer. Your salary shall be paid in
accordance with the Company’s customary payroll practice, subject to applicable
withholding.
Benefits
and Vacation. You
will
be eligible to receive the Company’s standard employee
benefits package, including its medical insurance, dental insurance, vision
insurance and disability insurance, and to accrue paid vacation and holidays
under the Company’s vacation plan. Your vacations shall be scheduled at a
mutually agreeable time for the Company and yourself, provided that you shall
receive not less than 15 days of paid vacation per year and such days shall
accrue if not used.
Director
and Officer Insurance. The
Company shall obtain and maintain coverage for you under a director and officer
insurance policy during the term of your employment that is equal to or
comparable to the same coverage to the Company’s other executive officers and in
amount and upon terms customary to similarly situated companies.
Expenses. The
Company shall reimburse you for reasonable travel and other expenses incurred
by
you in the furtherance of or in connection with the performance of your duties
on behalf of the Company in accordance with the Company’s expense reimbursement
policy as in effect from time to time.
Stock
Option. The
senior management of the Company will recommend that the Board of Directors
grant you an option to purchase up to 260,000 shares of the Company’s Common
Stock under the terms of the Company’s 2004 Stock Option Plan and shall be
exercisable for a period of ten (10) years. Options typically are granted at
the
next meeting of the Company’s Board of Directors following your commencement of
employment. The exercise price for this option will be the fair market value
of
the Company’s Common Stock on the grant date of such option. Each stock option
grant will be in the form of incentive stock options in the maximum amount
permitted by applicable law. You will also be considered for additional grants
of stock options in connection with each review, at least annually, by the
Board. Following your formal written acceptance of the stock option grant,
the
option will vest in accordance with the following schedule:
(i)
the
option will vest with respect to twenty five percent of the total number of
shares purchasable upon exercise of the option (25% of the total option grant)
after 12 months of continuous employment; and
(ii)
the
option will vest with respect to an additional 1/48th of the option shares
(approximately 2.08333% of the total option grant) at the close of each month
during the remaining term of the option, so that the entire option is vested
after four years of continuous employment.
Employee
Confidential Information and Inventions Agreement.
To
enable the Company to safeguard its proprietary and confidential information,
it
is a condition of employment that you agree to sign the Company’s standard form
of “Employee Confidential Information and Inventions Agreement.” A copy of this
Agreement will be forwarded to you for your review. We understand that you
are
likely to have signed similar agreements with prior employers, and wish to
impress upon you that the Company does not want to receive the confidential
or
proprietary information of others, and will support you in respecting your
lawful obligations to prior employers.
At-Will
Employment.
Should
you decide to accept our offer, you will be an “at-will” employee of the
Company. This means that either you or the Company may terminate the employment
relationship with or without cause at any time. Participation in any stock
option, benefit, compensation or incentive program does not change the nature
of
the employment relationship, which remains “at-will”.
Voluntary
Termination; Termination for Cause. In
the
event that your employment with the Company is terminated voluntarily by you
or
for Cause by the Company, then (i) all options which have been vested shall
continue to be exercisable in accordance with the terms of the Company’s stock
option plan and applicable legal requirements; (ii) all payments of Base Salary
accrued but unpaid on the date of termination, as well as all expenses incurred
to the date of termination, shall be due and payable to within the required
timeframe allowed by law and all further compensation by the Company to you
hereunder shall terminate as of the date of termination; and (iii) you shall
be
entitled to continue medical and dental insurance coverage for yourself and
your
dependents, at your expense, at the same level of coverage as was provided
to
you under the Company’s insurance plan immediately prior to termination (“Health
Care Coverage”) by electing COBRA continuation coverage (“COBRA”) in accordance
with applicable law.
Termination
upon Death or Disability.
In the
event that your employment with the Company is terminated as a result of your
death or permanent disability then (i) all options which have been vested shall
continue to be exercisable in accordance with the terms of the Company’s stock
option plan and applicable legal requirements; (ii) the Company shall pay to
you, your estate or your designated trust, as applicable, all payments of Base
Salary accrued but unpaid on the date of termination, as well as all expenses
incurred to the date of termination, shall be due and payable to within the
required timeframe allowed by law and all further compensation by the Company
to
you hereunder shall terminate as of the date of termination; and (iii) you
shall
be entitled to continue medical and dental insurance coverage for yourself
and
your dependents, at your expense, at the same level of coverage as was provided
to you under the Company’s Health Care Coverage by electing COBRA in accordance
with applicable law. For purposes hereof, the term “permanent disability” shall
mean your inability to perform your duties as they exist at the time disability
commences on account of illness, accident or other physical or mental incapacity
which shall continue for a consecutive period of ninety (90) days or an
aggregate of one hundred twenty (120) days in any consecutive twelve-month
period.
Termination
without Cause or resignation as a result of Constructive
Termination.
In the
event that your employment with the Company is terminated by the Company without
Cause or through your resignation as a result of Constructive Termination,
then
(i) all options which have been vested shall continue to be exercisable in
accordance with the terms of the Company’s stock option plan and applicable
legal requirements; (ii) all payments of Base Salary accrued but unpaid on
the
date of termination, as well as all expenses incurred to the date of
termination, shall be due and payable to you immediately; (iii) unvested options
will forfeit back to the Company on the date of termination, (iv) the Company
shall pay to you a severance payment, in monthly installments, equal to your
Base Salary for a period of three (3) months, but only if such termination
occurs subsequent to your achieving a satisfactory performance review as given
by the CEO and (v) the Company shall be responsible for all costs relating
to
maintaining your Health Care Coverage for you and your dependents under COBRA
during the severance period. You shall be entitled to continue medical and
dental insurance coverage for yourself and your dependents for the remaining
period, at your expense in accordance with applicable law. However, such Health
Care Coverage shall terminate upon your obtaining alternative Health Care
Coverage (after completing any waiting periods for such coverage to become
effective.)
Authorization
to Work.
Federal
government regulations require that all prospective employees present
documentation verifying their identity and demonstrating that they are
authorized to work in the United States. If you have any questions about this
requirement, which applies to U.S. citizens and non-U.S. citizens alike, please
contact our Human Resources Department.
Complete
Offer and Agreement.
This
letter contains our complete understanding and agreement regarding the terms
of
your employment by the Company. There are no other, different or prior
agreements or understandings on this or related subjects. Changes to the terms
of your employment can be made only in a writing signed by you and an authorized
executive of the Company, although it is understood that the Company may, from
time to time, in its sole discretion, adjust the salaries, incentive
compensation and benefits paid to you and its other employees, as well as job
titles, locations, duties, responsibilities, assignments and reporting
relationships.
Start
Date; Acceptance of Offer.
We hope
that you will accept this offer promptly, and begin your full-time employment
at
Wherify by February 13th, 2006. If our offer is acceptable to you, please sign
the enclosed copy of this letter in the space indicated and return it to me
at
your earliest convenience.
Xxxx,
our
team was impressed by your accomplishments and potential, and we are
enthusiastic at the prospect of your joining us. I look forward to your early
acceptance of this offer, and to your contributions to the growth and success
of
Wherify.
| Sincerely, | ||
| |
|
|
| /s/ Xxxxxxx Xxxxx | ||
|
Xxxxxxx Xxxxx |
||
| Chief Executive Officer | ||
ACCEPTANCE
OF EMPLOYMENT OFFER:
I
accept
the offer of employment by Wherify Wireless, Inc. on the terms described in
this
letter.
| Signature: | /s/ Xxxx X. Xxxxxx | |||
|
Xxxx X. Xxxxxx |
Date:
1/27/06
My
start
date will be: 1/13/06
