Employment Letter

Amendment 1 to Employment Letter

Amendment 2 to Employment Letter

 

 

 

 

Exhibit 99.2

[Guidance Software, Inc. Company Letterhead]

Barry J. Plaga

[address redacted]

Dear Barry:

We are pleased to offer you the position of Chief Financial Officer, based out of our Pasadena office. You will be reporting to Victor Limongelli, Chief Executive Office.

The principle terms and conditions of our offer are as follows:

 

Start Date

  

October 31, 2008

Salary

  

You will receive a semi-monthly base salary of $13,541.67 ($325,000.00 per year annualized). In addition to your base salary, you will be eligible for participation in the company’s Executive Bonus Incentive Plan (EBIP), which is tied to your overall performance goals. Under the EBIP your target bonus for FY ending December 31, 2008 will be $100,000, with a minimum guarantee of $75,000 for your service during the remainder of FY 2008. Your target bonus for FY 2009 will be $200,000. (performance goals are yet to be determined)

  

Guidance Software, Inc. pays its employees twice each month on a semi-monthly basis. Therefore, your first paycheck will be delivered to you on November 17, 2008.

Equity

  

As consideration for joining the company as a key member of the Senior Executive Team, you will be eligible to receive a restricted stock grant of 50,000 shares and a stock option grant of 50,000 shares, subject to the approval of the company’s Board of Directors, as per the terms of the company’s Amended 2004 Equity Incentive Plan. The proposed grant will be submitted for approval at the first regularly scheduled Quarterly Board of Director’s Meeting following your first day of work. Since restricted stock is treated as income once it vests, please be advised that the grant (should it be approved) will have a tax liability at each vesting event. Recognizing that the stock price will fluctuate between your hire date and the four separate dates of vesting, you should also be advised that your tax liability will be directly related to the closing stock price on the date of the vesting event. You may sell vested shares to cover your tax liability during any open window allowed for your insider designation.

Severance

  

Notwithstanding the At-Will nature of your employment with Guidance Software, Inc., in the event that your employment with the Company is terminated by the Company without cause, subject to your signature on a separation agreement, the Company will pay a lump sum severance totaling (1) one year at your prevailing base salary rate.

Benefits

  

You will become eligible for medical and dental health benefits on the first of the month following 30 days of employment. You will receive detailed information within two weeks of employment as to specific plans, costs and timelines for enrollment.

401(k)

  

As a full time employee with Guidance Software, Inc., you will become eligible to participate in the company matched 401(k) Savings Plan on the 1st of the Qtr. following the completion of three months of service with the Company. However, you are eligible to immediately rollover funds from your current eligible plan.

Vacation

  

As a member of the Senior Executive Team you will earn 15 days of vacation benefit each year of service to the company.


Holiday

  

There are nine paid holidays, unless Christmas Eve falls on a weekday in which case there are ten. You will also have one floating holiday per year.

Trial Service Period

  

Your performance will be evaluated after six months.

The terms and conditions of this offer are contingent upon you passing a background check, including employment references.

This offer is also contingent upon you completing an Employment Eligibility Verification Form and providing evidence of your identity and employment eligibility on the date that you are to begin work.

Additionally, you will be required to sign an “At-Will” Employment Agreement Form. Neither this letter nor the at-will employment agreement should be construed as an employment contract. Furthermore, Guidance Software, Inc. reserves the right to revoke this offer of employment at any time, for any or no reason.

If you have any questions regarding this offer, please don’t hesitate to call. We look forward to you joining the Guidance Software Team.

 

Sincerely,

Sandy Gyenes

VP, Human Resources

cc: Victor Limongelli

If you understand and agree with the terms of our offer as set out above, please indicate acceptance with your signature below.

 

/s/    Barry Plaga

 

 

Barry J. Plaga

 

Date:

 

August 5, 2008

 

 

 

 

 

 

EX-10.22 4 dex1022.htm AMENDMENT TO OFFER LETTER - BARRY J. PLAGA

Exhibit 10.22

 

December 18, 2008

Barry J. Plaga

 

 

Re:

AMENDMENT TO EMPLOYMENT TERMS

Dear Barry:

Reference is hereby made to your employment offer letter with Guidance Software, Inc. (the “Company”), dated as of July 23, 2008 (the “Employment Letter”). You and the Company have mutually agreed to amend certain provisions of the Employment Letter in order to conform the Employment Letter to the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) or an exemption therefrom.

Accordingly, effective as of the date first written above, the Employment Letter shall be amended as follows:

1. The section of the Employment Letter entitled “Severance” is hereby amended and restated in its entirety as follows:

 

Severance

 

Notwithstanding the “At-Will” nature of your employment with the Company, in the event that you incur a “separation from service” from the Company (within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986. as amended (the “Code”) and Treasury Regulation Section 1.409A-1(h)) (a “Separation from Service”) by reason of a termination of your employment by the Company without Cause (as defined below), then, in addition to any other accrued amounts payable to you through the date of your Separation from Service (such date, the “Termination Date”), the Company will pay you a lump sum severance payment equal to 100% of your annual base salary as in effect immediately prior to termination, payable within sixty (60) days after the Termination Date (with the exact payment date to be determined by the Company in its sole discretion), subject to the Six Month Delay (as defined below). Notwithstanding the foregoing, in no event shall payment of the severance described in this paragraph be required to be made unless you execute and deliver to the Company a release of claims in a form reasonably acceptable to the Company within twenty-one (21 ) days (or, to the extent required by applicable law, forty-five (45) days) following the Termination Date and you not revoke such release within seven (7) days thereafter.

 

 

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For purposes of this letter, “Cause” shall mean (i) your failure to render services to the Company or its subsidiaries in accordance with your assigned duties and responsibilities, and such failure of performance continues for a period of more than fifteen days after notice thereof has been provided to you by the Company (other than any such failure resulting from your disability); (ii) any action or omission by you involving willful misconduct or gross negligence relating to your duties and responsibilities to the Company or its affiliates, including without limitation, disloyalty, dishonesty or breach of fiduciary duty: (iii) your commission of (as determined by the Company) or indictment for a crime, either in connection with the performance of your obligations to the Company or its affiliates or which otherwise shall adversely affect your ability to perform such obligations or which shall adversely affect the business activities, reputation, goodwill or image of the Company or its affiliates; (iv) your breach of any material obligation you have under any written agreement with the Company or its affiliates or which have been delegated to you by the Company which, if capable of cure, is not cured within five days from receipt of notice from the Company or (v) any act of fraud, embezzlement, theft or misappropriation from the Company or its affiliates by you.

 

Notwithstanding anything to the contrary in this letter, no compensation or benefits, including without limitation any termination payments or benefits payable under this Section, shall be paid to you during the 6-month period following your Separation from Service from the Company to the extent that the Company determines that paying such amounts at the time or times indicated in this letter would be a prohibited distribution under Section 409A(a)(2)( B)(i) of the Code (the “Six Month Delay”). If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of your death), the Company shall pay you a lump-sum amount equal to the cumulative amount that would have otherwise been payable to you during such period.”

2. The following new section entitled “Code Section 409A” shall hereby be added immediately after the Section entitled “Trial Service Period” of the Employment Letter:

 

Code

Section 409A

 

To the extent applicable, this letter shall be interpreted and applied consistent and in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this letter to the contrary, if the Company determines that any compensation or benefits payable under this letter may

 

 

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not be either exempt from or compliant with Section 409A of the Code and related Department of Treasury guidance, the Company may in its sole discretion adopt such amendments to this letter or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this letter from Section 409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance: provided, however, that this paragraph shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action.

 

To the extent permitted under Section 409A of the Code, any separate payment or benefit under this letter or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and the Six Month Delay to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A of the Code.”

3. This first Amendment shall be and is hereby incorporated in and forms a part of the Employment Letter.

4. Except as amended and set forth herein, the Employment Letter shall continue in full force and effect.

[Signature Page Follows]

 

 

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

 

GUIDANCE SOFTWARE, INC.

By:

 

/s/ Mark Harrington

Name:

 

Mark Harrington

Title:

 

General Counsel & Corporate Secretary

 

EXECUTIVE

/s/ Barry J. Plaga

Barry J. Plaga

 

 

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EX-99.1 2 d831905dex991.htm EX-99.1

Exhibit 99.1

 

 

December 1, 2014

Barry J. Plaga

Re: Second Amendment to Employment Agreement

Dear Barry:

Reference is hereby made to your employment offer letter with Guidance Software Inc. (the “Company”) and you, dated as of July 23, 2008 (the “Employment Letter”) and the Amendment to the Employment Letter dated December 18, 2008 (“First Amendment”). You and the Company have mutually agreed to amend certain provisions of the Employment Letter and Amendment as set forth below.

Effective as November 5, 2014, the Employment Letter and First Amendment shall be further amended as follows:

 

1.

Title Your new title will be Interim Chief Executive Officer and Chief Financial Officer.

 

2.

Base Salary Your new base salary shall be $360,000 per year.

 

3.

Stock You will receive a special grant of 35,000 shares of restricted stock under the Second Amended and Restated 2014 Equity Incentive Plan. The grant date shall be the date this Agreement has been mutually-executed and such shares shall vest 100% on November 5, 2015, so long as you remain an employee of the Company and irrespective of your title on the date of vesting.

 

4.

Severance A change to your title shall not, in itself, be a trigger for severance payments. In the event your employment is terminated by the Company, at the time of or within eighteen (18) months after a “change in control” of the Company, as defined below, for any reason other than a termination for “cause” as defined in the Employment Letter, the Company shall pay you, in a lump sum at termination, an amount equal to: (A) (i) one hundred percent (100%) of your then-current Base Salary; and (ii) the amount of your then-current On Target Bonus prorated for the calendar year of your termination plus one additional year of your then-current On Target Bonus and continue your current company paid health and welfare benefits for a period of one year from termination. However, in no event shall the severance benefits payable to you under this Second Amendment be less than the severance benefits payable to you under the First Amendment. In the event you are terminated without a Change of Control or more than eighteen (18) months after a Change of Control, you will remain eligible for the severance benefit described in the First Amendment. Thus, upon termination, provided such termination is not for “cause” as stated herein, you will be entitled to either the severance benefit stated in this Second Amendment (if you meet the requirements), or the severance benefit described in the First Amendment, but not both.

 

5.

(a) Change in Control. For the purpose of this Agreement, a change in the ownership or effective control of the Company as provided in Internal Revenue Code Section 409A (a)(2)(A)(v) shall be deemed to occur if the Company incurs a change in control event, as that term is used in Treasury Regulation 1.409A-3(i)(5).

 

 


 

 

 

    

(b) Base Salary. For the purpose of this Agreement, “Base Salary” shall mean your annual salary rate at the time of termination after a change in control.

 

6.

Employee Obligations upon Termination.

(a) Your Termination Obligations.

(i) You hereby acknowledge and agree that all Personal Property and equipment furnished to, or prepared by You in the course of, or incident to your employment, belongs to the Company and shall be promptly returned to the Company upon termination of his employment. For purposes of this Agreement, “Personal Property” includes, without limitation, all books, manuals, records, reports, notes, contracts, lists, blueprints, and other documents, or materials, or copies thereof (including computer files), and all other proprietary information relating to the business of the Company or its subsidiaries or affiliates. Following termination You shall not retain any written or other tangible material containing any proprietary information of the Company or its subsidiaries or affiliates.

(ii) Upon termination of the Employment Period for any reason, You shall be deemed to have resigned from all offices and directorships, if any, then held with the Company or any subsidiary or affiliate, and, at the Company’s request, You shall execute such documents as are necessary or desirable to effectuate such resignations.

(b) Your Covenants.

(i) Confidentiality. As a condition of your employment with the Company, You agree that during the term of such employment and any time thereafter, except as is required in connection with your services rendered for the Company, You will not directly or indirectly disclose or appropriate to your own use, or the use of any third party, any trade secret or confidential or proprietary information concerning the Company or its subsidiaries or affiliates or their businesses, whether or not developed by You, including, without limitation, information with respect to the Company’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, business plans, designs, marketing or other business strategies, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. The Company and You stipulate and agree that as between the Company and You the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company).

(ii) Covenant Not to Solicit Employees. You agree that during employment with the Company and for a period of one year thereafter, You will not, directly or indirectly, solicit, induce or encourage any employee of the Company or its subsidiaries or affiliates to terminate such employee’s relationship therewith.

(iii) Covenant Not to Solicit Customers. You agrees that during employment with the Company and thereafter, You will not use any trade secret of the Company or its subsidiaries or affiliates to solicit, induce, or encourage any customer, client, vendor, or other party doing business with the Company or its subsidiaries or affiliates to terminate its relationship therewith or transfer its business from the Company or its subsidiaries or affiliates.

(iv) Injunctive Relief and Enforcement. You hereby acknowledges that irreparable injury will result to the Company in the event of a breach by You of his obligations under this Section that monetary damages for such breach would not be readily calculable, and that the Company would not have an adequate remedy at law therefor. In addition, in the event that the agreements set forth in such Sections shall be determined

 

 


 

 

by any court of competent jurisdiction to be unenforceable by reason of extending for too great a period of time or over too great a geographical area or by reason of being too extensive in any other respect, each such agreement shall be reformed and interpreted to extend over the maximum period of time for which it may be enforceable and to the maximum extent in all other respects as to which it may be enforceable, and enforced as so interpreted, all as determined by such court in such action.

(v) Non-Disparagement. You and the Company agree to not make any negative statements concerning, or take any action that derogates, You, the Company or any other Releasee, or the Company’s, or any other Releasee’s, services, reputation, officers, directors, employees, financial status, or operations or damages any of the Company’s or any other Releasee’s business relationships. For purposes of this provision, a statement shall only be attributable to the Company or its Releasees if made by an officer or director of the Company. It is agreed that in the event of a breach of the provisions of this Paragraph by You the Company or any other Releasee, it would be impractical or extremely difficult to fix actual damages. Therefore, the Parties agree that in the event of such a breach, the breaching party shall pay to the non-breaching party, as liquidated damages, and not as penalty, the sum of FIVE THOUSAND DOLLARS AND ZERO CENTS ($5,000.00) for each breach by the breaching party, which represents reasonable compensation to the non-breaching party for the loss incurred because of each such breach.

7. Release of Claims. The severance benefits payable to You upon termination are expressly conditioned on You executing a general release of claims (the “Release”) substantially in the form attached hereto as Exhibit A within twenty-one (21) days after the date of such termination (the “Termination Date”) and such Release is not revoked by you within seven (7) days after execution.

This Second Amendment shall be and is hereby incorporated in and forms a part of the Employment Letter.

 

 

 

Guidance Software, Inc.

Barry Plaga

 

 

 

/s/ Barry Plaga

 

 

By /s/ Robert van Schoonenberg

 

 

Robert van Schoonenberg

Chair, Compensation Committee

Guidance Software, Inc.

 

 


 

 

EXHIBIT A

GENERAL RELEASE

For a valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned does hereby release and forever discharge the “Releasees” hereunder, consisting of Guidance Software, Inc., a Delaware corporation (the “Company”), and each of its partners, associates, affiliates, successors, heirs, assigns, agents, directors, officers, employees, shareholders, representatives, lawyers, insurers, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which the undersigned now has or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof. The Claims released herein include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to the employment or termination from employment of the undersigned by the Releasees, or any of them; any claim for benefits under any stock option or other equity-based incentive plan of the Releasees (or any related agreement to which any Releasee is a party); any alleged breach of any express or implied contract of employment; any alleged torts or other alleged legal restrictions on Releasee’s right to terminate the employment of the undersigned; and any alleged violation of any federal, state or local statute or ordinance including, without limitation, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans With Disabilities Act, and the California Fair Employment and Housing Act. Notwithstanding the foregoing, this Release shall not operate to release any Claims which the undersigned may have to payments or benefits under that certain Employment Agreement, as Twice Amended, between the Company and the undersigned.

THE UNDERSIGNED ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY LEGAL COUNSEL AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES 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.”

THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS HE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.

IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, THE UNDERSIGNED IS HEREBY ADVISED AS FOLLOWS:

(1) HE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE;

(2) HE HAS TWENTY-ONE (21) DAYS TO CONSIDER THIS RELEASE BEFORE SIGNING IT; AND

(3) HE HAS SEVEN (7) DAYS AFTER SIGNING THIS RELEASE TO REVOKE IT, AND THIS RELEASE WILL BECOME EFFECTIVE UPON THE EXPIRATION OF THAT REVOCATION PERIOD.

The undersigned represents and warrants that there has been no assignment or other transfer of any interest in any Claim which he may have against Releasees, or any of them, and the undersigned agrees to indemnify and hold Releasees, and each of them, harmless from any liability, Claims, demands, damages, costs, expenses and attorneys’ fees incurred by Releasees, or any of them, as the result of any such assignment or transfer or any rights or Claims under any such assignment or transfer. It is the intention of the parties that this indemnity does not require payment as a condition precedent to recovery by the Releasees against the undersigned under this indemnity.

The undersigned agrees that if he hereafter commences any suit arising out of, based upon, or relating to any of the Claims released hereunder or in any manner asserts against Releasees, or any of them, any of the Claims released hereunder, then the undersigned agrees to pay to Releasees, and each of them, in addition to any other damages caused to Releasees thereby, all attorneys fees incurred by Releasees in defending or otherwise responding to said

 

 


 

 

suit or Claim; provided, however, that the undersigned shall not be obligated to pay the Releasees’ attorneys fees to the extent such fees are attributable to claims under the Age Discrimination in Employment Act or a challenge to the validity of the release of claims under the Age Discrimination in Employment Act.

The undersigned further understands and agrees that neither the payment of any sum of money nor the execution of this Release shall constitute or be construed as an admission of any liability whatsoever by the Releasees, or any of them, who have consistently taken the position that they have no liability whatsoever to the undersigned.

IN WITNESS WHEREOF, the undersigned has executed this Release this          day of                     ,             .

 

 

 

Barry Plaga