Exhibit 10.34
executive EMPLOYMENT AGREEMENT
ZeroFox Holdings, Inc. (the “Company”) and John R. Prestridge, III (“Executive”) (each, a “Party” and collectively, the “Parties”) agree to enter into this EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) dated as of January 18, 2023 (“Effective Date”). The term “Company” shall include all subsidiaries and affiliates of the Company including, but not limited to, ZeroFox, Inc. and Identity Theft Guard Solutions, Inc.
The Agreement will commence as of the Effective Date and will terminate upon the date that all of the obligations of the Parties with respect to this Agreement have been satisfied.
The Company and Executive acknowledge that Executive’s employment is and will continue to be at-will. The Company may terminate the employment relationship at any time as described in Section 3.
Executive’s employment may be terminated under any of the circumstances set forth in this Section 3. Upon termination, Executive (or his beneficiary or estate, as the case may be) shall be entitled to receive the compensation and benefits described in Section 4 below, and, if applicable, Section 5 or 6 below.
Upon termination of Executive’s employment under this Agreement for any reason, Executive (or his or her designated beneficiary or estate, as the case may be) shall be entitled to receive the following compensation:
If the requirements of Section 5 or 6 are satisfied, the Company shall also pay Executive the amounts described in Section 5 or 6, as applicable; provided, however, in no event shall Executive be paid amounts under both Sections 5 and 6.
For purposes of this Agreement, “Change in Control” shall mean the definition of “Change in Control” in the ZeroFox Holdings, Inc. 2022 Incentive Equity Plan (the “Equity Plan”).
In the event of a termination of Executive’s employment, the provisions of Section 4 and 5 or 6, as applicable, are intended to be and are exclusive and in lieu of any other rights or remedies to which Executive otherwise may be entitled, whether at law, tort or contract, in equity, or under this Agreement. Executive will be entitled to no benefits, compensation or other payments or rights upon a termination of employment other than those benefits expressly set forth in Section 4 and 5 or 6, as applicable, of this Agreement.
whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code.
all of which information Executive acknowledges and agrees is not generally known or available to the general public, but has been developed, compiled or acquired by the Company at its great effort and expense. Confidential Information and Trade Secrets can be in any form – oral, written or machine readable, including electronic files.
Executive shall not, directly or indirectly, engage in, assist, or have any active interest or involvement, in a Same or Similar Capacity (defined below) that Executive served in at the Company, whether as an employee, agent, consultant, advisor, officer, director, stockholder (excluding holding of less than 1% of the stock of a public company), partner, proprietor or any type of principal whatsoever, in any Competitive Business within the Restricted Territory.
For purposes of this Agreement: (A) “Competitive Business” means any business that provides external cybersecurity products and services including, but not limited to, digital risk protection, breach notification services, brand protection, social media protection, PII (personally identifiable
information) removal, executive protection, domain protection, threat intelligence, detection and removal of fraud and phishing campaigns, account takeover prevention, dark web monitoring, and incident response services; (B) “Restricted Territory” means anywhere in the world; and (C) “Same or Similar Capacity” means: (1) the same or similar capacity or function in which Executive worked for the Company at any time during the twenty-four (24) months prior to cessation of employment; or (2) any other capacity where Executive’s knowledge of the Company’s Confidential Information and Trade Secrets could reasonably be expected to be used for a Competitive Business or provide a competitive advantage to any Competitive Business.
Executive shall not, either on Executive’s own account or on behalf of any person, firm, or business entity, recruit, solicit, interfere with, or endeavor to cause any employee of the Company with whom Executive came into contact or about whom Executive obtained Confidential Information and Trade Secrets, to leave employment with the Company, or to work in a capacity that is competitive with the Company, or to work in a capacity that is similar to the capacity in which the employee was employed by the Company.
For purposes of this Agreement, Executive is deemed to have had “material contact” with any Customer (defined below) or Prospective Customer (defined below) of the Company if, in the twenty-four (24) months prior to the cessation of Executive’s employment with the Company, the Customer or Prospective Customer is one: (i) with whom or which Executive dealt on behalf of the Company; (ii) whose dealings with the Company were coordinated or supervised by Executive; (iii) about whom Executive obtained Confidential Information and Trade Secrets in the ordinary course of business as a result of Executive’s employment with the Company; or (iv) who receives products or services authorized by the Company, the sale or provision of which resulted in compensation, commissions, or earnings for Executive within the twenty-four (24) months prior to the cessation of Executive’s employment.
A “Customer” is a person or entity that has agreed, verbally or in writing, to purchase goods or services from the Company or has purchased goods or services from the Company in the twenty-four (24) months preceding the cessation of Executive’s employment with the Company.
A “Prospective Customer” is any person or entity that has discussed or inquired about the purchase of the Company’s products or services or has made an expression of interest to the Company regarding the purchase of the Company’s products or services in the twenty-four (24) months preceding the cessation of Executive’s employment with the Company.
The Company shall withhold from any compensation and benefits payable under this Agreement all applicable federal, state, local, or other taxes.
Nothing in this Agreement shall be construed as giving Executive any claim against any specific assets of the Company or as imposing any trustee relationship upon the Company in respect of Executive. The Company shall not be required to establish a special or separate fund or to segregate any of its assets in order to provide for the satisfaction of its obligations under this Agreement. Executive’s rights under this Agreement shall be limited to those of an unsecured general creditor of the Company and its affiliates.
This Agreement shall supersede any and all existing oral or written agreements, representations, or warranties between Executive and the Company or any of its subsidiaries or affiliated entities relating to the terms of Executive’s employment. It may not be amended except by a written agreement signed by both Parties. For the avoidance of doubt, Executive’s Non-Disclosure, Non-Competition and Non-Solicitation Agreement with ZeroFox, Inc. dated March 16, 2020 is superseded by this Agreement and terminated as of the Effective Date of this Agreement. In addition, all other understandings and agreements relating to the acceleration of stock option vesting in connection with a change in control are hereby terminated as of the Effective Date of this Agreement.
This Agreement shall be governed by the laws of the State of Maryland without reference to its principles of conflict of law. This Agreement is intended to supplement, and not supersede, any remedies or claims that may be available to the Company under applicable common and/or statutory law, including, without limitation, any common law and/or statutory claims relating to the misappropriation of trade secrets and/or unfair business practices. In the event that a judge, arbitrator, or other adjudicatory body determines this Agreement is governed by and construed in accordance with the laws of a state listed in the attached Addendum at Exhibit 2, then the Parties understand and agree that the Agreement shall then be amended in accordance with that state’s corresponding Paragraph in the Addendum.
To the extent Section 17 of the Agreement conflicts with the Employment Arbitration Rules of the AAA, the express provisions of Section 17 of the Agreement shall prevail.
Any notice, consent, request or other communication made or given in connection with this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by nationally recognized overnight courier services, by registered or certified mail, return receipt requested, by email (and receipt subsequently confirmed) or by hand delivery, to those listed below at their following respective addresses or at such other address as each may specify by notice to the others:
To the Company:
ZeroFox Holding, Inc.
1834 Charles Street
Baltimore, MD 21230
Attention: General Counsel
To the Executive:
At Executive’s principal residence as reflected in the records of the Company
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the day and year set forth below.
THE COMPANY
By: /S/ James C. Foster
Name: James C. Foster Title: Chief Executive Officer and Chairman
| EXECUTIVE: John R. Prestridge, III
By:/S/ John R. Prestridge, III
Title: Chief Marketing Officer
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Exhibit 1: Executive’s Prior Inventions
Invention Name | Date of Invention | Description of Invention | Owner(s) of Invention | Executive’s Relationship to Owner(s) of Invention |
N/A |
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None.
Exhibit 2: State Law Addendum
North Carolina: Pursuant to Paragraph 16 above, if North Carolina law is applied to this Agreement, Paragraph 10(b) above shall be replaced with the following paragraph:
(b) Non-Disclosure of Confidential Information. Executive agrees that, except as specifically required in the performance of his or her duties on behalf of the Company, Executive will not directly or indirectly use, disclose or disseminate to any other person, organization or entity engaged in a Competitive Business in the Restricted Territory, any of the Company’s Confidential Information and Trade Secrets, either during the period of Executive’s employment or for five (5) years thereafter . Executive further agrees to maintain the Company’s Confidential Information and Trade Secrets in strict confidence during this time and to use all commercially reasonable efforts to not allow any unauthorized access to, or disclosure of, the Company’s Confidential Information and Trade Secrets. Executive agrees not to save or store Confidential Information or Trade Secrets outside the Company’s password protected computer systems such as on a personal USB thumb drive, backup drive, home computer, personal phone, email account or cloud storage.