Employment Agreement, dated June 1, 2019, between Finjan Holdings, Inc. and Jevan Anderson

 

employment is terminated during the Term by the Company without Cause (other than due to death or Disability) or by Employee with Good Reason, or the Company’s non-renewal of this Agreement (pursuant to Section 2), subject to the satisfaction of the Release Condition, Employee shall be entitled to the following: (i) continued payment of Base Salary (as in effect immediately prior to the date of termination and prior to any reduction pursuant to Section 7(a)(3)(A)) for the nine (9) month period following Employee’s termination date (the “Severance Period”), payable in the same manner and in the same installments as previously paid; (ii) substantially equal installment payments for the Severance Period (payable at the same time as the payments under 7(a)(i) are made), equal to the average quarterly Bonus paid or payable (if earned but not paid) to Employee under the Executive Incentive Compensation Plans for the immediately preceding 12 fiscal quarters dating back to no earlier than the first fiscal quarter of 2017 (or such fewer number of fiscal quarters dating back to such time) (“Average Quarterly Comp Bonus”); (iii) the Bonus for the quarter in which the termination of employment occurs, payable at the same time as other bonuses are paid by the Company; (iv) extension of any exercisability for any nonqualified stock options until the earlier of the expiration of the applicable option term or 12 months; and (v) if Employee timely and properly elects health continuation coverage under COBRA, the Company shall pay for or reimburse Employee’s COBRA premiums until the earliest of: (A) the end of the Severance Period, (B) the date Employee is no longer eligible to receive COBRA continuation coverage, and (C) the date on which Employee receives substantially similar coverage from another employer or other source (the “Continuation Coverage Benefit”). The payments and benefits described under this Section 7(a)(i)-(v) are collectively referred to as the “Termination Benefits.”

or any affiliates under Section 4980D of the Code, such other Code section, or other applicable law, including, without limitation, Employee Retirement Income Security Act of 1974, as amended, then the parties hereto agree to enter into an alternative arrangement providing for the benefits or comparable coverage as Employee is entitled under this Agreement to receive, in an economically neutral manner, which does not cause the imposition of such taxes or adverse consequences; provided, that, if the Company’s accountants reasonably determine in good faith that no alternative arrangement is feasible, then Employee shall forfeit the right to such participation and/or contribution without consideration therefor.

in Employee's Base Salary (other than a general reduction in Base Salary that affects all similarly situated executives in substantially the same proportions); (B) a relocation of Employee's principal place of employment by more than 50 miles; (C) the Company’s failure to pay amounts under this Agreement when due; (D) a material, adverse change in Employee's authority, duties, or responsibilities (other than temporarily while Employee is physically or mentally incapacitated or as required by applicable law). Employee cannot terminate his employment for Good Reason unless he has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within 90 days of the initial existence of such grounds and the Company has had at least 30 days from the date on which such notice is provided to cure such circumstances. If Employee does not terminate his employment for Good Reason within 130 days after the first occurrence of the applicable grounds, then Employee will be deemed to have waived his right to terminate for Good Reason with respect to such grounds.

made in writing to the Company and Employee shall be final and conclusive for all purposes of this Agreement.

of the total voting power represented by the Company’s then outstanding voting securities; provided, that such calculation shall be measured based on an initial measurement date of December 31, 2017, with any “person” not reflected as of such date pursuant to public filings as having at least five percent (5%) beneficial ownership of the Company being deemed to have no beneficial ownership of the Company; or (iv) a change in the composition of the Board (with an initial measurement date of December 31, 2017), as a result of which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors” will mean directors who either (A) are directors of the Company as of December 31, 2017, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of those directors whose election or nomination was not in connection with any transactions described in subsections (i), (ii), or (iii) or in connection with an actual or threatened proxy contest relating to the election of directors of the Company.

research or development, information pertaining to trading, processes, codes, system designs, system specifications, techniques, computer programs, applications developed by or for Company, projections, financial information, costs, revenues, profits, investments, analysis, potential investors and clients, personal information concerning employees of the Company, business methods and models, trade secrets, databases, simulation software, trading systems, mathematical models and programs, algorithms, numerical techniques, procedural guidelines, knowledge of the Company’s facilities, supervisory and risk control techniques and procedures, fee and compensation structures, or other confidential, secret or proprietary information and any other Confidential Information relating to the business affairs of Company or its clients.  However, Confidential Information does not include any information that is generally known to the public or the financial services industry, other than as a result of Employee’s unauthorized disclosure.

solely for the purpose of reporting or investigating a suspected violation of law, or (b) in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee may disclose Confidential Information (including trade secrets) to Employee’s attorney and use the Confidential Information (including trade secrets) in the court proceeding if Employee (x) files any document containing the Confidential Information under seal and (y) does not disclose the Confidential Information, except pursuant to court order.

Employee agrees that he will not, at any time after the date hereof, disparage Company (including any of its shareholders or affiliates or its or their respective directors, officers, employees, or agents) or the business of Company. The Company agrees that it shall instruct its executive officers and its Board members to refrain from disparaging the Employee. Notwithstanding the foregoing, nothing in this Section 10 shall be construed to prevent any party hereto from testifying truthfully before any court, tribunal or other legal proceeding or from responding truthfully as to

factual matters or queries initiated by third parties. Employee further agrees that, Employee will comply fully with any and all media and technology (including any e-mail, internet and social media) policies as in effect from time to time, including with respect to any period following the date of termination, to the extent applicable, and any lawful Board directives regarding public statements regarding the Company, any affiliates, or their respective personnel, related persons, investors or affiliates. For avoidance of doubt, nothing in this Section 10 shall be construed in a manner that would violate any law, including the protections outlined in Section 8(d).

Any breach or threatened breach of paragraphs 8 through 10 of this Agreement will irreparably injure Company, and money damages will not be an adequate remedy.  Therefore, Company may seek to obtain and enforce an injunction, to the extent allowed by applicable law, prohibiting Employee from violating or threatening to violate these provisions.  This is not Company’s only remedy, it is in addition to any other remedy available and is without prejudice to Company’s right to seek additional remedies, where applicable.

     Employee hereby represents and warrants to the Company as follows:  (i) Employee has the legal capacity and unrestricted right to execute and deliver this Agreement and to perform all of his obligations; (ii) the execution and delivery of this Agreement by Employee and the performance of his obligations will not violate or be in conflict with any fiduciary or other duty, instrument, agreement, document, arrangement, or other understanding to which Employee is a party or by which he is or may be bound or subject; and (iii) Employee is not a party to any instrument, agreement, document, arrangement, including, but not limited to, confidential information agreement, non-competition agreement, non-solicitation agreement, or other understanding with any person (other than the Company) requiring or restricting the use or disclosure of any confidential information or the provision of any employment, consulting or other services; or, if Employee is a party to any such instrument, agreement, document or arrangement, it has fully disclosed same to the Company.  Employee further represents and warrants that Employee has not improperly removed, copied, reproduced or maintained (in paper or electronic form) any confidential or proprietary information of any prior employer.

     If any provision of this Agreement fails to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) or any regulations or Treasury guidance promulgated thereunder, or would result in Employee’s recognizing income for United States federal income tax purposes with respect to any amount payable under this Agreement before the date of payment, or to incur interest or additional tax pursuant to Section 409A, the Company reserves the right to reform such provisions provided that the Company shall maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A.  To the

extent any payment of “non-qualified deferred compensation” subject to Section 409A of the Code becomes due to Employee hereunder at the time of his termination of employment (or terms of similar effect), such amount shall only be paid to Employee to the extent such termination also constitutes his “separation from service” (as defined in Treasury Regulations § 1.409A-1(h)) with the Company.  Notwithstanding anything in this Agreement to the contrary, in the event that Employee is a “specified employee” (within the meaning of Treasury Regulations § 1.409A-1(i)), then, to the extent necessary to avoid penalties under Section 409A, no payment of any amount that constitutes “non-qualified deferred compensation” subject to Section 409A of the Code shall be made to Employee in connection with his “separation from service” (as defined in Treasury Regulations §1.409A-1(h)) with the Company prior to the earlier of (a) the date of Employee’s death, and (b) the first day of the seventh month following the date of such separation from service. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the preceding sentence (whether they would have otherwise been paid in a single sum or in installments) shall be paid or reimbursed to Employee in a lump-sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.  To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (i) all such expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by Employee, (ii) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.  For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.  Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.  Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A. 

If any of the payments or benefits received or to be received by Employee (including, without limitation, any payment or benefits received in connection with a Change in Control or Employee’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 15, be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then prior to making the 280G Payments, the Company will perform a calculation by comparing (i) the Net Benefit (as defined below) to Employee of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to Employee if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum

extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 15 shall be made in a manner determined by the Company that is consistent with the requirements of Section 409A.

All calculations and determinations under this Section 15 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Tax Counsel”), which calculations and determinations shall be subject to the reasonable good faith review of and consideration by the Employee (and, at Employee’s cost, Employee’s counsel), and Tax Counsel’s determinations shall be conclusive and binding on the Company and Employee for all purposes. For purposes of making the calculations and determinations required by this Section 15, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and Employee shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 15. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Finjan Holdings, Inc.

2000 University Avenue, Suite 600

East Palo Alto, California 94303

Attn: Executive Management or Board of Directors 

 IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first written above.