EMPLOYMENTAGREEMENT
Exhibit 10.25
EXECUTION COPY
EMPLOYMENT AGREEMENT
This Employment Agreement (the Agreement) is entered into between Veritone, Inc., a Delaware corporation (the Veritone), Veritone One, Inc., a Delaware corporation (VOI) and Ryan Steelberg (the Executive) effective as of this 14th day of March, 2017 (the Effective Date). Veritone and VOI are collectively referred to herein as the Company.
WHEREAS, the Company and Executive desire to enter into a written agreement to document the terms of the Executives employment with the Company, which agreement shall replace in its entirety any prior employment agreement or understanding pursuant to which the Executive will continue to perform services to the Company.
NOW, THEREFORE, on the basis of the foregoing and in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:
1. Employment. The term of Executives employment under this Agreement shall be for a period of three years commencing on the Effective Date and ending on third anniversary of the Effective Date, subject to earlier termination or renewal as provided in this Agreement (the Employment Term). Unless either party notifies the other no later than ninety (90) days prior to the expiration of the Employment Term of its or his intention not to extend and renew, on the expiration of the Employment Term, and on each annual anniversary of the expiration of the Employment Term, this Agreement shall automatically extend and renew for an additional one year period (each of which renewal periods shall form part of the Employment Term), subject to earlier termination as provided in the Agreement. If the Executives employment terminates for any reason, the Executive shall not be entitled to any payments, benefits, damages, awards or compensation other than as provided by this Agreement.
2. Duties and Location. During the Employment Term, the Executive shall be employed by the Company as the President of Veritone, reporting directly to the Companys Chief Executive Officer. Notwithstanding the foregoing, no action may be taken regarding (i) the termination of Executives Service with the Company (as defined in the Companys equity incentive plan then in effect (the Stock Plan)), or any other action listed in Section 7.2(b) below, without the approval of the Companys Board of Directors (the Board) or (ii) Executives compensation or bonus (without the approval of the Compensation Committee of the Board (the Committee). Executive shall have such duties, responsibilities and powers that are customary for an individual holding the position of the President. Executive shall faithfully and diligently perform such duties of said office that are customary for an individual holding the position of the President, as well as such other lawful related duties of an executive nature as may be reasonably requested by the Chief Executive Officer from time to time; provided however, that Executive shall continue to have material input regarding (a) the Annual Operating Plan to be established for the Company each year; and (b) all merger and acquisition transactions, financing, technology and strategic transactions, and other material transactions undertaken by the Company. Executive shall devote substantially all of his business time and effort to the performance of his duties hereunder (except for permitted vacation periods and reasonable periods of illness or other disability); provided however, nothing contained herein shall prohibit the Executive from engaging in (i) charitable, civic and industry work, (ii) occasional lectures and teaching at educational and/or charitable institutes, (iii) subject to the
consent of the Audit Committee or any other committee designated by the Board, service on boards of directors of non-competing companies, and (iv) advising other companies or businesses as may be pre-approved in writing by the Companys Audit Committee or any other committee designated by the Board; provided that, with respect to (i) through (iv) above, such service, work or activities do not materially interfere with Executives performance of his duties to the Company (as determined by the Companys Audit Committee or any other committee designated by the Board after thirty (30) days notice to Executive and Executives opportunity to cure). Executive shall be based at the Companys offices located in Newport Beach, California or at such other offices of the Company located within thirty-five (35) miles of Executives residence as of the Effective Date.
3. Compensation.
3.1. 2016 Compensation. In consideration for Executives services rendered to the Company during the year ended December 31, 2016, the Company shall pay to Executive a cash bonus in the amount of Three Hundred Fifty Thousand Dollars ($350,000), which bonus shall be payable as follows (i) $175,000 of such bonus shall be paid on or before March 15, 2017; and (ii) the balance shall be payable upon the earlier of (A) 30 days prior written demand after the completion of the Companys initial public offering pursuant to a registration statement on Form S-1 filed with the Securities and Exchange Commission (the Initial Public Offering); or (B) February 15, 2018.
3.2. Annual Compensation. In consideration for the services rendered by Executive hereunder during the Employment Term, the Company shall pay to Executive for services rendered on and after the Effective Date, during the Employment Term a base salary at the rate of Three Hundred Fifty Thousand Dollars ($350,000) per annum (the Annual Salary), which shall be payable in accordance with the regular payroll practices of the Company applicable to senior executives (but in no event less frequently than on a monthly basis). The Compensation Committee shall review Executives Annual Salary (with input from the Chief Executive Officer) at least on an annual basis and the Annual Salary may be increased from time to time at the discretion of the Compensation Committee. Any increase in Executives Annual Salary shall thereupon be the Annual Salary for the purposes hereof.
3.3. Bonus. During the Employment Term, in addition to the Annual Salary, commencing as of the of the current fiscal year and for each fiscal year of the Company thereafter during the Employment Term, Executive shall be entitled to receive bonuses (cash or otherwise), in the sole discretion of the Compensation Committee, from time to time. Such bonuses may be based upon performance criteria established by the Compensation Committee; provided that the Compensation Committee shall be required to consult with Executive before establishing any specified performance criteria for any fiscal year.
3.4. Applicable Withholdings. The Company shall deduct and withhold from all compensation payable to Executive hereunder any and all applicable federal, state and local income and employment withholding taxes and any other amounts that the Company determines are required to be deducted or withheld by the Company under applicable statutes, regulations, ordinances or orders governing or requiring the withholding or deduction of amounts otherwise payable as compensation or wages to employees.
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4. Equity Grants. The Company shall grant to Executive the following two stock options, which options shall be granted as of the date the underwriting agreement for the Initial Public Offering is signed (the IPO Effective Date) provided that Executive is in Service (as defined in the Stock Plan) with the Company under this Agreement on such date, and such options shall have an exercise price per share equal to the price to the public in the Initial Public Offering. Such options shall be granted under the Companys equity incentive plan then in effect (the Stock Plan) and shall be subject to all of the terms and conditions of the Stock Plan and the form Notice of Grant of Stock Option and Stock Option Agreement approved for use under the Stock Plan, except as otherwise provided herein.
4.1. Time-Based Option. The first stock option to be granted to Executive (the Time-Based Option) shall be an option to purchase that number of shares of the Companys Common Stock equal to five percent (5%) of the Companys outstanding shares of capital stock as of the IPO Effective Date on a Fully Diluted Basis, which shall give effect to (i) the issuance of shares in the Initial Public Offering; (ii) the conversion of all of the Companys Preferred Stock in connection with the Initial Public Offering; (iii) the conversion in full of all outstanding principal and accrued interest on the Acacia Secured Promissory Note dated August 15, 2016; (iv) the exercise in full of the Acacia Primary Common Stock Purchase Warrant dated August 15, 2016; (v) the assumed exercise in full of all other outstanding options and warrants to purchase shares of the Companys capital stock as of the IPO Effective Date; and (vi) the assumed conversion of all other convertible securities of the Company as of the IPO Effective Date. The Time-Based Option shall vest in 36 equal monthly installments upon Executives completion of each month of Service (as defined in the Stock Plan) over the three (3) year period measured from the IPO Effective Date.
4.2. Performance-Based Option. The second stock option to be granted to Executive (the Performance-Based Option) shall be an option to purchase that number of shares of the Companys Common Stock equal to two and one-half percent (2.5%) of the Companys outstanding capital stock as of the IPO Effective Date, on a Fully Diluted Basis (as described above). The Performance-Based Option shall vest in full upon the earlier of (i) the date the market capitalization of the Company, based on the closing price per share of capital stock of the Companys Common Stock as reported on the Companys primary stock exchange/market on such date multiplied by the number of shares of capital stock of the Company outstanding, equals or exceeds Four Hundred Million Dollars ($400,000,000.00) for at least five consecutive trading days, or (ii) the fifth anniversary of the closing of the Initial Public Offering, provided that the Executive is still in the Service of the Company (as defined in the Stock Plan) on such date.
4.3. Acceleration of Options. The vesting of the Time-Based Option and the Performance-Based Option (collectively, the Options) shall accelerate (i) in full if the Company terminates Executive without Cause (as defined below); (ii) with respect to fifty percent (50%) of the then unvested shares subject to the Options if the Executive resigns for Good Reason (as defined below); or (iii) if there is a Change in Control (as defined in the Stock Plan) in which the Options are not assumed in the Change in Control or are otherwise cancelled in connection with the Change in Control; provided, however, that under subsection (iii) above, the Performance-Based Option shall only accelerate if the aggregate equity value of the Company in the Change in Control is equal or greater than $400 million.
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5. Benefits. During the Employment Term, the Executive will be eligible for all employee benefits, and to participate in all employee benefit plans, which the Company makes available to its full-time employees, subject to the terms and conditions of the Companys personnel policies or benefit plans, as applicable governing such benefits. Such benefits shall include in any group life, hospitalization or disability insurance plans, health programs, retirement plans, fringe benefit programs and similar benefits that may be available to other senior executives of the Company generally, on the same terms as such other executives, or such other benefits as programs as are currently being provided to Executive and his family, which shall include, without limitation, reimbursement by the Company for Executives separate health insurance policy, on comparable terms as currently provided to Executive. Executive shall accrue vacation at a rate at least equal to twenty (20) days of paid vacation each calendar year pursuant to the Companys then existing vacation policy without regard to any caps on accrual of such vacation. In addition to the foregoing, Executive shall also be eligible for paid sick time and paid holidays provided to any other employees of the Company.
6. Expenses. The Company shall promptly (but in no event later than the end of the calendar year following the calendar year during which the expenses referred to below in this Section 6 are incurred) pay or reimburse Executive for all ordinary and reasonable out-of-pocket expenses actually incurred (and, in the case of reimbursement, paid) by the Executive in the performance of the Executives services under this Agreement; provided that the Executive submits reasonable proof of such expenses in accordance with the Companys expense reimbursement policies then in effect for the Companys employees.
7. Certain Terminations of Employment.
7.1. Termination upon Death or Disability. If the Executive dies during the Employment Term, the Employment Term shall terminate as of the date of death, and the obligations of the Company to or with respect to the Executive shall terminate in their entirety upon such date except as otherwise provided under this Section 7.1. If the Executive becomes Disabled (as defined below), the Company shall have the right, to the extent permitted by law, to terminate the employment of the Executive upon notice in writing to the Executive. For purposes of this Agreement, the Executive will only be considered Disabled if the Executive is unable by reason of accident or illness (including mental illness) to perform essential job functions of his position for more than 180 consecutive days with reasonable accommodation that does not cause undue hardship. Disability will be determined by a physician reasonably acceptable to the Company and Executive or his legal representatives. If the Executive is terminated due to death or by reason of becoming Disabled, (i) the Executive (or the Executives estate or beneficiaries in the case of the death of the Executive) shall be entitled to (A) any Annual Salary earned prior to the date of termination of employment, (B) reimbursement under this Agreement for expenses incurred prior to the termination of employment; (C) payment for any earned but unused vacation days, (D) any other amounts to which Executive is legally entitled to as of the date of his termination (the amounts in clauses (A) through and including (D) being the Accrued Amounts), and (E) any outstanding options held by Executive to the extent vested as of the date of such termination may be exercised by Executive or Executives estate for a period of one year following termination of employment in accordance with this Section 7.1, and (ii) the Executive (or, in the case of his death, his estate and beneficiaries) shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder. Any payments made pursuant to this Section 7.1 shall be made within thirty (30) days of the termination of the Executives employment with the Company.
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7.2. Termination by the Company for Cause; Resignation of the Executive without Good Reason; Expiration of the Employment Term.
(a) For purposes of this Agreement, Cause shall mean: (i) a breach by the Executive of a material provision of the Agreement; or (ii) the Executives conviction, guilty plea or plea of nolo contendere for any crime involving financial impropriety, moral turpitude, or in any felony criminal proceeding, in each case that was materially detrimental to the Companys reputation or business; provided that, with respect to the actions, events or conditions described in clauses (i) and (ii) above, any termination by the Company shall be presumed to be other than for Cause unless (A) the Company provides written notice to Executive of the applicable action, event or condition allegedly constituting Cause (which notice shall specify in reasonable detail the particulars of such action, event or condition), and (B) if such condition can be cured, rescinded or remedied, the Executive fails to cure, rescind or otherwise remedy the applicable action, event or condition described in such written notice within thirty (30) days after delivery of such written notice (or such longer period as the Company may agree in writing).
(b) For the purposes of this Agreement, Good Reason shall mean Executives voluntary resignation from his employment with the Company for any one or more of the following events which occurs, without Executives written agreement that such event will not constitute a Good Reason event: (i) a material reduction in the Executives duties, powers and responsibilities; (ii) if the Executive no longer reports directly to the Chief Executive Officer or the Companys reporting structure is changed so that any of the Companys officer positions (which currently report to Executive) no longer report to the Executive; (iii) a material reduction in Executives compensation, which shall deemed to have occurred if Executives Annual Salary has been reduced by ten percent (10%) or more without the Executives prior written consent; (iv) a relocation of the Companys offices by more than thirty-five (35) miles outside of Executives residence as of the date hereof; or (v) the Companys breach of any material provision of this Agreement. In order for a termination to constitute a termination for Good Reason hereunder, Executive must give the Company written notice of his intent to resign for Good Reason within ninety (90) days following the date Executive first learns of such Good Reason event, and the Company shall not have cured such Good Reason event within thirty (30) days following receipt of such notice from the Executive and Executives employment must terminate upon expiration of such thirty (30)-day period.
(c) If the Company terminates Executive for Cause, if the Executive resigns from the Company without Good Reason, or if Executives employment terminates at the end of the Employment Term, then (i) the Executive shall receive the Accrued Amounts, and (ii) the Executive shall have no further rights to any other compensation or benefits hereunder on or after such termination of employment.
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7.3. Termination by the Company without Cause or Resignation for Good Reason. Notwithstanding anything to the contrary contained herein, the Company may terminate the Executives employment at any time for any reason or no reason. If the Company terminates Executives employment with the Company during the Employment Term without Cause (excluding a termination covered by Section 7.1) or Executive resigns for Good Reason, then the Executive shall receive (i) the Accrued Amounts, and (ii) if a general release of all claims as provided below is executed and delivered by Executive to the Company, in the form attached as Exhibit A, and has become irrevocable, all within the fifty-two (52) days following termination (it being expressly agreed and understood that other than the Accrued Amounts, no payment or benefit under this Section 7.3 shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), then Executive shall receive full payment of his Annual Salary (as in effect immediately before such termination) through the then current Employment Term in the form of a single lump sum payment, within sixty (60) days of such termination, subject to the requirements of 409A as defined below (the Severance). Payment of Severance shall be conditioned on Executives execution (and non-revocation) of a general release of all claims against the Company and its affiliates (subject to customary exceptions for continuing obligations covered by indemnification or director and officers insurance and share ownership) in the form attached hereto as Exhibit A; and the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder. All Severance due shall also be subject to Section 14.2. For avoidance of doubt, the termination of the Executives employment at the end of the Employment Term shall not be treated as termination during the Employment Term without Cause eligible for Severance.
8. Section 280G Matters. In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute parachute payments within the meaning of Section 280G of the Internal Revenue Code (the Code) (Parachute Payments), the following rules shall apply: If at such time the Company is not an entity whose stock is readily tradable on an established securities market (and the Company is otherwise eligible to use the exception in Section 280G(b)(5)(A)(ii)) and if the Executive agrees to waive the right to receive and/or repay any Parachute Payment as required by applicable regulations under Section 280G(b)(5) of the Code (a 280G Waiver), the Company shall seek to obtain stockholder approval in accordance with the terms of Section 280G(b)(5)(A)(ii) and the regulations thereunder. If at such time either Section 280G(b)(5)(A) is not available for the Company or the Executive does not provide a 280G Waiver, then Executive will be entitled to receive either (i) the full amount of the Parachute Payments, or (ii) the maximum amount that may be provided to Executive without resulting in any portion of such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest portion of the Parachute Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each a Payment) contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute
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Payment Ratio. For Payments with the same Parachute Payment Ratio, such Payments shall be reduced based on the time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing Payments with a lower Parachute Payment Ratio. Any such repayment or reduction will in all events comply with 409A. For purposes of the foregoing, Parachute Payment Ratio shall mean a fraction, the numerator of which is the value of the applicable Payment for purposes of Section 280G and the denominator of which is the intrinsic value of such Payment.
9. Indemnification Agreement. The Company shall enter into an indemnification agreement with Executive in substantially the form of indemnification agreement adopted by the Company for the Companys officers and directors.
10. At Will Agreement. Executives employment with the Company is at will, which means that it may be terminated by either the Company or Executive at any time, for any reason, without reason, and without advance notice.
11. Covenants of the Executive. As condition of employment hereunder, Executive shall sign and deliver to the Company the Companys form of Employee Information and Proprietary Information and Inventions Assignment Agreement, in substantially the form attached hereto as Exhibit B, to the extent such form agreement has not been previously executed by the Executive.
12. Non-Solicitation. Executive covenants and agrees that for one (1) year following the date on which Executives employment is terminated, regardless of the reason that Employees employment is terminated, Executive shall not directly or indirectly: (a) solicit for employment to any then current employee of the Company (including, without limitation, any person employed by the Company after the date hereof), or (b) encourage any person, vendor or supplier to terminate such persons employment or relationship with the Company, as applicable. Notwithstanding the foregoing, nothing herein shall prevent the Executive from placing general advertisements for employment which are not specifically directed to, or intended to encourage response from, the other partys employees, or from hiring individuals who respond to such advertisements. This provision shall be in addition to the non-solicitation provision set forth in the PIIAA, which shall remain in full force and effect.
13. Representations and Warranties of the Executive. The Executive represents and warrants to the Company as follows:
13.1. This Agreement will be duly executed and delivered by the Executive and (assuming due execution and delivery hereof by the Company) will be the valid and binding obligation of the Executive enforceable against the Executive in accordance with its terms.
13.2. Neither the execution and delivery of this Agreement by the Executive nor the performance of this Agreement in accordance with its terms and conditions by the Executive (i) requires the approval or consent of any governmental body or of any other person or (ii) conflicts with or results in any breach or violation of, or constitutes (or with notice or lapse of time or both would constitute) a default under, any agreement, instrument, judgment, decree, order, statute, rule, permit or governmental regulation applicable to the Executive.
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13.3. The representations and warranties of the Executive contained in this Section 13 shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
14. Other Provisions.
14.1. Severability. If it is determined that any of the provisions of this Agreement, is invalid or unenforceable, the remainder of the provisions of this Agreement shall not thereby be affected and shall be given full effect, without regard to the invalid portions.
14.2. Section 409A Matters. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and its corresponding regulations (Section 409A), or an exemption thereto, and payments may only be made under this Agreement upon an event and in a manner permitted by Section 409A, to the extent applicable. Severance benefits provided under this Agreement are intended to be exempt from Section 409A under the separation pay exception to the maximum extent applicable. Further, any payments that qualify for the short-term deferral exception or another exception under Section 409A shall be paid under the applicable exception. All separation payments to be made upon a termination of employment under this Agreement may only be made upon a separation from service under Section 409A. For purposes of Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may the Executive, directly or indirectly, designate the calendar year of a payment. If a payment that is subject to execution of the release could be made in more than one taxable year, payment shall be made in the later taxable year. All reimbursements and in-kind benefits provided under the Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. If the Executive is treated as a specified employee (as determined by the Company in its discretion in accordance with applicable regulations under Section 409A of the Code) at the time of his or her separation from service (within the meaning of Section 409A of the Code) from the Company and each employer treated as a single employer with the Company under Section 414(b) or (c) of the Code, and if any amount(s) of nonqualified deferred compensation (within the meaning of Section 409A of the Code) are payable under this Agreement by reason of the Employees separation from service, then payment of the amounts so treated as nonqualified deferred compensation which would otherwise be payable during the six month period following the Employees separation from service will be delayed until the earlier of (i) the first business day which is at least six months and one day following the date of such separation from service, (ii) the death of the Employee, or (iii) such earlier date on which payment is permitted under Section 409A(a)(2)(B) of the Code.
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14.3. Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be (i) delivered personally, (ii) sent by reputable overnight courier that guarantees next business day delivery or (iii) sent by certified or express mail, postage prepaid (return receipt or signature confirmation of receipt required). Any such notice shall be deemed given when so delivered personally, or if sent via reputable overnight courier, one business day after the date of deposit with such courier or, if mailed (certified and/or express mail), five days after the date of deposit in the United States mails as follows:
(a) | If to Veritone and/or VOI, to: |
Veritone, Inc.
3366 Via Lido
Newport Beach, CA 92663
Attention: General Counsel
with a copy to:
Morgan, Lewis & Bockius, LLP
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626
Attn: Ellen S. Bancroft, Esq.
(b) | If to the Executive, to: |
Ryan Steelberg
(at Executives last residence as
provided by Executive to the
Company for payroll records)
with a copy to:
Chris Erwin, Esq.
Erwin Legal PC
47 Discovery, Suite 160
Irvine, California 92618
Any such person may by notice given in accordance with this Section 14.3 to the other parties hereto designate another address or person for receipt by such person of notices hereunder.
14.4. Board Action. Any actions permitted or required by the Board under this Agreement must be taken by the Board at a meeting of the Board, duly noticed and held.
14.5. Return of Property and Resignation. Promptly upon the Executives termination from employment, the Executive shall return all property of the Company and its affiliates and shall resign as an officer of the Company and its affiliates.
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14.6. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior representations, understandings or agreements, written or oral, made by the Company or any of its officers, directors, stockholders or attorneys with respect thereto.
14.7. Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege nor any single or partial exercise of any such right, power or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
15. Governing Law; Venue THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAWS. Executive and the Company consent to the exclusive jurisdiction of, and venue in, the state courts in Orange County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Central District of California) in connection with any dispute regarding the meaning, effect, performance or validity of this Agreement or arising out of, related to, or in any way connected with Executives employment with the Company or services rendered hereunder.
16. Arbitration. The parties agree that any and all disputes, claims, or controversies between the parties to this Agreement, including any dispute, claim or controversy arising out of or relating to an interpretation, construction, performance or breach of this Agreement, shall be settled by arbitration to be held in Orange County, California administered by the American Arbitration Association in accordance with its then existing Commercial Arbitration Rules. The Federal Arbitration Act (FAA) shall apply to the interpretation of this arbitration provision. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrators decision in any court having jurisdiction. The parties will pay the costs and expenses of such arbitration in such proportions as the arbitrator shall decide, and each party shall separately pay his own attorneys fees and expenses.
17. Binding Effect. Successors and Assigns; No Third-Party Beneficiaries. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of each of the parties, including, but not limited to, the Companys successor-in-interest, the Executives heirs and the personal representatives of the Executives estate; provided, however, that neither party shall assign or delegate any of the obligations created under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, the Company shall have the unrestricted right to assign this Agreement and its rights hereunder and to delegate all or any part of its obligations hereunder to the Companys successor in the event of any sale, transfer or other disposition of all or substantially all of the Companys assets or business, whether by merger, consolidation or otherwise, but in such event such assignee shall expressly assume all
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obligations of the Company hereunder. In the event the Company has had a Change in Control and the Company is not the surviving party or successor in such Change in Control, then the Company agrees to have such successor or surviving party expressly assume the Companys obligations under this Agreement. Nothing in this Agreement shall confer upon any person or entity not a party to this Agreement, or the legal representatives of such person or entity, any rights or remedies of any nature or kind whatsoever under or by reason of this Agreement.
18. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original but all such counterparts together shall constitute one and the same instrument. Each counterpart may consist of two copies hereof each signed by one of the parties hereto.
19. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
[SIGNATURES ON NEXT PAGE]
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EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and year written below.
VERITONE, INC. | ||
By: | /S/ PETER COLLINS Peter F. Collins, Chief Financial Officer | |
Date: March 14, 2017 | ||
VERITONE ONE, INC. | ||
By: | /S/ PETER COLLINS Peter F. Collins, Chief Financial Officer | |
Date: March 14, 2017 | ||
/S/ RYAN STEELBERG | ||
RYAN STEELBERG | ||
Date: March 14, 2017 |
VERITONE, INC.
SIGNATURE PAGE TO EMPLOYMENT AGREEMENT
Exhibit A
Form of Release
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GENERAL RELEASE
This GENERAL RELEASE (this Agreement) is made and entered into by and between (hereinafter Executive) and Veritone, Inc. (hereinafter Employer), and inures to the benefit of Employers current, former and future parents, subsidiaries, related entities, employee benefit plans and their fiduciaries, predecessors, successors, officers, directors, shareholders, agents, employees and assigns of Employer.
RECITALS
A. Executive has worked for Employer for a period of time in an executive capacity, and has received substantial equity in Employer for the services that he provided to Employer.
B. Executives employment with Employer ended effective .
C. Executive and Employer wish permanently to resolve any and all disputes arising out of the termination of Executives employment with Employer.
NOW, THEREFORE, for and in consideration of the execution of this Agreement and the mutual covenants contained in the following paragraphs, Employer and Executive agree as follows:
1. No Admission of Liability. The parties agree that the execution of this Agreement, and the performance of the acts required by it, does not constitute an admission of liability, culpability, negligence or wrongdoing on the part of anyone, and will not be construed for any purpose as an admission of liability, culpability, negligence or wrongdoing by any party.
2. Wages and Vacation Time Paid. Executive acknowledges that he as a result of the equity and other consideration that he received, he was fully and completely compensated for all services that he provided to Employer.
3. Release Benefit. Pursuant to the terms of Executives Employment Agreement, he is entitled to certain benefits if he agrees to release all known and unknown claims against Employer (the Release Benefits). Executive acknowledges and agrees that he is not entitled to the Release Benefits unless and until he executes this General Release.
4. General Release. Executive for himself, his heirs, executors, administrators, assigns and successors, fully and forever releases and discharges Employer and each of its current, former and future parents, subsidiaries, related entities, employee benefit plans and their fiduciaries, predecessors, successors, officers, directors, shareholders, agents, employees and assigns (collectively, Releasees), with respect to any and all claims, liabilities and causes of action, of every nature, kind and description, in law, equity or otherwise, which have arisen, occurred or existed at any time prior to the signing of this Agreement, including, without limitation, any and all claims, liabilities and causes of action arising out of or relating to Executives employment, Executives employment agreement, grants of equity interests to Executive, and cessation of Executives employment with Employer.
5. Release of Employment Related Claims. Executive understands and agrees that he is waiving any and all rights he may have had, now has, or in the future may have, to pursue against any of the Releasees any and all remedies available to him under any employment-related causes of action, including, without limitation, claims for unpaid wages, wrongful discharge, breach of contract, breach of the covenant of good faith and fair dealing, fraud, violation of public policy, defamation, discrimination, physical injury, emotional distress, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans With Disabilities Act, the Federal Rehabilitation Act, the Family and Medical Leave Act, the California Fair Employment and Housing Act, the Equal Pay Act of 1963, the California Family Rights Act, the provisions of the California Labor Code and any other federal, state or local laws and regulations relating to employment, conditions of employment (including wage and hour laws) and/or employment discrimination. Executive understands, however, that this Agreement does
not extend to claims that may not be released as a matter of law. In addition, Executive understands and agrees that this release does not prevent Executive from making a complaint with, contacting, or participating in an investigation with a federal governmental agency such as the Equal Employment Opportunity Commission, the Department of Labor, and the Securities and Exchange Commission, but does waive and release any claim for damages or monetary relief associated with such a complaint or communication.
6. Release of Disputed Wage Claims. Executive understand and agrees that Executive is releasing all claims related to disputes over wages owed to employees, including but not limited to, disputed wages, vacation, bonuses, overtime, break premiums, and any other type or form of disputed compensation for time worked.
7. Release of Unknown Claims. Executive expressly waives any and all rights and benefits conferred upon him by Section 1542 of the Civil Code of the State of California, which states as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
Executive expressly agrees and understands that the release given by him pursuant to this Agreement applies to all unknown, unsuspected and unanticipated claims, liabilities and causes of action which he may have against Employer or any of the other Releasees.
8. Entire Agreement. Executive acknowledges and agrees that no promises or representations were made to him which do not appear in this Agreement, and that this Agreement contains the entire agreement of the parties on its subject matter. Executive acknowledges and agrees that he enters into this Agreement based upon his own judgment and not in reliance upon any representations or promises made by Employer or anyone acting on behalf of Employer, other than those contained within this Agreement. The parties further agree that if any of the facts or matters upon which they now rely in making this Agreement prove to be otherwise, this Agreement will nonetheless remain in full force and effect.
9. Voluntary Execution. Executive hereby acknowledges that he has read and understands this Agreement and that he signs this Agreement voluntarily and without coercion. Executive further acknowledges that he has been advised by Employer to obtain independent legal advice regarding the matters contained in this Agreement. Executive further acknowledges that the waivers he has made in this Agreement are knowing, conscious and voluntary and are made with full appreciation that he is forever foreclosed from pursuing any of the rights waived.
10. Severability. If any provision of this Agreement, it will not affect the enforceability of the remaining provisions and all remaining provisions will be enforced to the extent permitted by law.
11. Modification. The parties agree that no waiver, amendment or modification of any of the terms of this Agreement shall be effective unless in writing and signed by all parties affected by the waiver, amendment or modification. No waiver of any term, condition or default of any term of this Agreement shall be construed as a waiver of any other term, condition or default.
12. Governing Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAWS. Executive and the Company consent to the exclusive jurisdiction of, and venue in, the state courts in Orange County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Central District of California) in connection with any dispute regarding the meaning, effect, performance or validity of this Agreement or arising out of, related to, or in any way connected with Executives employment with the Company or services rendered hereunder.
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13. Arbitration. The parties agree that any and all disputes, claims, or controversies between the parties to this Agreement including any dispute, claim or controversy arising out of or relating to an interpretation, construction, performance or breach of this Agreement, shall be settled by arbitration to be held in Orange County, California administered by the American Arbitration Association in accordance with its then existing Commercial Arbitration Rules. The Federal Arbitration Act (FAA) shall apply to interpretation of this arbitration provision. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrators decision in any court having jurisdiction. The parties will pay the costs and expenses of such arbitration in such proportions as the arbitrator shall decide, and each party shall separately pay his own attorneys fees and expenses. Executive and Employer waive any right to bring or pursue class or representative claims in arbitration. Executive understands that by signing this Agreement, Executive waives any right to bring a class, collective, or representative claim against Employer, and any arbitration will be on behalf of Executive only.
14. Time for Consideration. Executive understands that he is entitled to have 21 days time in which to consider this Agreement. Employer advises Executive to obtain the advice and counsel from the legal representative of his choice. Executive executes this Agreement having had sufficient time within which to consider its terms. Executive represents that if he executes this Agreement before 21 days have elapsed, he does so voluntarily, upon the advice and with the approval of his legal counsel, and that he voluntarily waives any remaining consideration period.
15. Revocation. Executive understands that after executing this Agreement, he has the right to revoke it within seven (7) days after his execution of it. Executive understands that this Agreement will not become effective and enforceable unless the seven day revocation period passes and Executive does not revoke this Agreement in writing. Executive understands that this Agreement may not be revoked after the seven day revocation period has passed. Executive understands that any revocation of this Agreement must be made in writing and delivered to Employer at 3366 Via Lido, Newport Beach, CA 92663 within the seven (7) day period.
BY SIGNING THIS AGREEMENT, EXECUTIVE REPRESENTS THAT EXECUTIVE READ THIS AGREEMENT AND KNOWS THAT EXECUTIVE GIVES UP IMPORTANT RIGHTS.
Dated: |
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Executive |
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Exhibit B
Employee Proprietary Information and Invention Assignment Agreement
(attached hereto)
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VERITONE, INC.
EMPLOYEE NONDISCLOSURE
AND
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
Page 1 of 6
Page 2 of 6
Page 3 of 6
Page 4 of 6
I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT.
Date: | March , 2017 |
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Ryan Steelberg |
Page 5 of 6
EXHIBIT A
CERTIFICATION OF COMPLIANCE
I certify that I have received a copy of the Employee Nondisclosure and Proprietary Information and Inventions Assignment Agreement (the Agreement) that I signed in connection with my employment with Veritone, Inc., or a subsidiary or an affiliate thereof (together and separately, the Company).
I certify that I have complied with, and will continue to comply with, the Agreement including, without limitation:
1. | My obligations under Section 2 of the Agreement to preserve the confidentiality of all Confidential and Proprietary Information (as defined in the Agreement), and to not disclose nor use any Company Confidential and Proprietary Information unless necessary in the performance of my job duties and responsibilities as an employee of the Company, or as may be expressly authorized in writing by an executive officer of the Company; |
2. | My obligation under Section 2 of the Agreement to return to the Company, and to not keep or otherwise retain, any and all Company Materials (as defined in the Agreement) as well as any Company apparatus, equipment or other physical property; and |
3. | My obligations under Section 7 of the Agreement with respect to non-solicitation of Service Providers (as defined in the Agreement) of the Company. |
I understand that this Certification of Compliance in no way limits my rights and obligations or the Companys rights and obligations, under the Agreement.
Date: |
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Former Employee Signature | ||||||||
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Former Employee Name (Please Print) |