EX-10.9 EMPLOYMENT AGREEMENT



 




Exhibit 10.9









EMPLOYMENT AGREEMENT




     This Employment Agreement effective as of November 13, 2006 (the “Effective Date”) is between
AuthenTec, Inc., a Delaware corporation (the “Company”), and Frederick R. Jorgenson (“Employee”).




	1.	 	Employment. The Company hereby employs Employee and Employee hereby accepts
employment with the Company to assist in the development and to promote the operation of the
business carried on by the Company subject to the following conditions:






	 	(a)	 	Position. Employee will serve as Vice President, General Counsel and
Secretary, reporting to the Chief Executive Officer and will perform such duties and will exercise
such responsibilities, commensurate with such position, on behalf of the Company as
from time to time will be reasonably assigned to him. During his service hereunder,
Employee will at all times provide his full working time and best efforts to the
performance of his obligations and duties hereunder; provided, however, that nothing
herein contained will be deemed to prevent or limit the right of Employee to (i) invest
his funds in the capital stock or other securities of any corporation except a
competitor or (ii) serve on the boards of directors or advisory committees of charitable
organizations, trade organizations or other companies which are not competitors and
which are approved by the Company or (iii) engage in other personal business matters
that do not interfere with the performance of Employee’s duties as described above.
	 
	 	(b)	 	Base Compensation. During the term of his employment hereunder, Employee
will be paid an annual base salary at the rate of One Hundred and Seventy Five Thousand
Dollars ($175,000.00) (“Base Compensation”), payable in equal bi-weekly
installments in arrears; provided however, that beginning with the standard review
cycle planned for 2008, the Board will review and, in its discretion, may increase (but
shall not decrease) Employee’s Base Compensation based on the Company’s
performance and Employee’s contributions.
	 
	 	(c)	 	Bonus Plan; Annual Bonus. In addition, Employee will be eligible to
participate in AuthenTec’s annual bonus plans which are generally available to other senior level
employees of AuthenTec as may be approved from time to time.
	 
	 	(d)	 	Stock Options. Employee you will be granted an incentive stock option to
purchase a combined total of 567,533 shares of AuthenTec common stock at a strike price equal to
the fair market value of the stock on the date of grant as determined and approved by
the board of directors pursuant to the terms of the form of Stock Option Certificate
attached hereto as Exhibit A. The Employee shall also be eligible to participate in and receive
additional grants commensurate with his senior level position in any stock option plan,
restricted stock plan or other equity-based or equity related compensation plan,
programs or agreements of the Company made available generally to its senior





AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-321-308-1300 • Fax: 1-407-308-1430 • www.authentec.com




 









 






	 	 	 	executives; provided that the amount, timing, and other terms of any future grant
shall be determined by the Board (or the Compensation Committee thereof) in its sole
discretion.






	 	(e)	 	Other Benefits.






(i) Insurance and Other Benefits. Employee shall be entitled to participate in all of
the benefits afforded full-time AuthenTec employees, subject to the various eligibility
requirements of the specific benefit plans and subject, in some cases, to employee
contributions to such plans. These benefits shall include group health and dental plans, a
401(k) deferred compensation plan, life insurance, short term disability coverage, optional
supplemental life insurance and long term disability coverages.




(ii) Vacation. Employee shall be entitled to an annual vacation of two (2) weeks per year for
the first year of employment and increasing to three (3) weeks per year thereafter. Unused
vacation shall be accrued pursuant to the Company’s policy.




(iii) Reimbursement of Expenses. The Company shall reimburse Employee for all
reasonable travel, temporary lodging, entertainment and other expenses incurred or paid by
Employee in connection with or related to the performance of his duties or responsibilities
under this Agreement, provided that Employee submits to the Company substantiation of such
expenses sufficient to satisfy the Company’s expense reimbursement policies and the record
keeping guidelines promulgated from time to time by the Internal Revenue Service.




(iv) Indemnification; Liability Insurance: Company agrees to indemnify Employee and
hold Employee harmless to the fullest extent permitted by applicable law and under the bylaws
of Company against and in respect to any and all actions, suits, proceedings, claims, demands,
judgments, costs, expenses (including reasonable attorneys’ fees), losses, and damages
resulting from the Employee’s good-faith performance of his duties and obligations. Company
shall cover Employee under directors and officers’ liability insurance both during and, while
potential liability exists, after the terms of this Agreement in substantially the same amount
and on substantially the same terms as Company covers its other
active officers and directors.




	 	(f)	 	Relocation Expenses






a) Upon receipt of valid invoices, the Company will immediately reimburse (or pay on behalf
of) the Employee allowable expenses of $150,000, including:




i) The closing costs, attorneys fees, and/or transfer taxes, incident to the sale of
the Employee’s existing residence in Wellesley, MA; (ii) the cost of return airfares for
the transport of all members of the Employee’s family to Florida; and (iii) the packing and
transport expenses for furniture and personal effects from the Employee’s existing
residence to Florida. The parties will work to properly credit expenses to the company as
non-income to the employee such as for closing costs and relocation.



AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com





 









 










ii) In addition, the Company shall provide the Employee a once-off resettlement
allowance to assist with expenses associated with the relocation. The amount of the
resettlement allowance will be the difference between $150,000 and the costs
associated with 1(f)a)i). This allowance will be considered ordinary income to the
employee.




b) The reasonable cost of coach airfares to/from Massachusetts twice per month during
the first three months of employment or until such time as the family moves to Florida,
whichever comes first. These costs are not considered part of 1(f)a).




c) In addition, the company will pay the employee $25,000 in advance of his 2007 bonus,
which will be guaranteed to be no less than $25,000. These costs are not considered part

of l(f)a).




	2.	 	Term of Employment; Termination.






	 	(a)	 	Term. Nothing in this agreement shall be construed as a contractual
guarantee of employment. Employment is both considered “at will” and, subject to local law, may be
discontinued by either party, with or without cause, at any time.






	 	(b)	 	Termination; Post-Termination Matters.






	 	(i)	 	Termination.






	 	(A)	 	Voluntary Termination By Employee. Employee will
give the Company at least thirty (30) days prior written notice as to the date of any voluntary
termination by Employee, specifying therein the date of termination
	 
	 	(B)	 	Termination By the Company For Cause. The Company
may terminate Employee’s employment hereunder at any time for Cause.
	 
	 	(C)	 	Termination By The Company Without Cause. The
Company may terminate Employee’s employment upon at least thirty (30) days prior
written notice Without Cause. Any such termination Without Cause will be
within the sole discretion of the Company. Such discretion if exercised by
the Company will be unlimited and will not be subject to any test of
reasonableness by any court of law or by Employee.
	 
	 	(D)	 	Constructive Termination Of Employee. Employee
may terminate his employment upon written notice to the Company of any one of the
following events that occurs, if not cured and corrected by the Company or
its successor within 10 business days after written notice thereof by the
Employee to the Company or its successor (“Good Reason”): (i) any change
in the Employee’s Vice President or General Counsel titles or position that
constitutes a material diminution or material adverse change in authority as
compared to the authority of the Employee’s title or position as of the
Effective Date; (ii) any material reduction in the Employee’s annual Base





AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com




 









 







	 	 	 	Compensation as in effect on the Effective Date (other than as set forth in the
proviso to item (v)); (iii) a substantial diminution or material adverse change in the
Employee’s duties and responsibilities (other than a change due to the Employee’s Total
and Permanent Disability or as an accommodation under the Americans With Disabilities
Act); (iv) any requirement that the Employee relocate, by more than 50 miles, the
principal location from which he performs services for the Company as compared to such
location as of the Effective Date; (v) any other material breach of this Agreement
which is not cured within thirty (30) days after receipt of written notice, provided
that a reduction in the Employee’s Base Compensation that is proportional under a
reasonable plan affecting all other employees shall not be deemed a material breach of
this Agreement; (vi) failure of Company to obtain the agreement from any successor to
Company to assume and agree to perform this Agreement;
provided, however, that
no diminution of title, position, duties or responsibilities shall be deemed to occur
solely because the Company becomes a subsidiary of another corporation or entity or
because there has been a change in the reporting hierarchy incident thereto involving
the Employee.






	 	(ii)	 	Severance.






	 	(A)	 	If Employee’s employment is terminated pursuant to Sections 2(b)(i)(A) or
(B), the Company shall pay Employee only his Base Compensation through
his actual day of termination, and the Company shall have no further
liability or obligation to Employee, his executors, heirs, assigns or other
persons claiming under or through his estate.
	 
	 	(B)	 	If the Company terminates Employee’s employment Without Cause
pursuant to Section 2(b)(i)(C) or Employee terminates, his employment
pursuant to Section 2(b)(i)(D), the Company shall provide Employee with
the following:






	 	(I)	 	An amount equal to nine (9) months (not including accrued vacation)
of Employee’s Base Compensation, payable in accordance with the
Company’s payroll practices and a continuation of the additional
insurance benefits described herein for such nine month period;
	 
	 	(II)	 	The assignment, at Employee’s option, of insurance policies insuring
Employee, provided that, notwithstanding paragraph (I) above,
Employee shall thereafter be responsible for any premium payments
and transfer of any vested funds or other benefits under any of the
Company’s ERISA or other benefit plans.
	 
	 	(III)	 	Employee’s rights regarding stock options or any other
equity-based or equity related compensation plans, programs or agreements of the





AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com




 









 






	 	 	 	Company shall be determined in accordance with the terms of the
applicable plans, programs, or agreements.






	 	(iii)	 	Definitions. As used in this Agreement.






	 	(A)	 	A “voluntary termination” of employment by Employee, means
any termination at the will of Employee, other than by reason of a Constructive
Termination Event.
	 
	 	(B)	 	“Termination for Cause” means Employee’s termination if such
termination results from any one or more of the following events, circumstances or
occurrences: (i) the Employee’s material breach of any written employment,
consulting, advisory, proprietary information, nondisclosure or other
agreement with the Company and his or her subsequent failure to cure such
breach to the satisfaction of the Company within thirty (30) days following
written notice of such breach to the Employee by the Company; (ii) the
Employee’s conviction of, or entry of a plea of guilty or nolo contendere to, a
felony or any misdemeanor involving moral turpitude if the Board
reasonably determines that such conviction or plea materially adversely
affects the Company; (iii) the commission of an act of fraud or dishonesty by
the Employee if the Company reasonably determines that such act materially
adversely affects the Company; or (iv) Employee’s intentional damage or
destruction of substantial property of the Company. The determination of
“cause” shall be made in good faith by the Company and its determination
shall be final and conclusive.
	 
	 	(C)	 	A termination “Without Cause” means a termination at the will of the
Company other than Termination for Cause.
	 
	 	(D)	 	“Change of Control” shall mean the earliest to occur of (i) a
merger or consolidation to which the Company is a party and which results in, or is
effected in connection with, a change in ownership of a majority of the
outstanding shares of voting stock of the Company, (ii) any sale or transfer
of all or substantially all of the assets of the Company to an unaffiliated third
party, (iii) the sale by the stockholders of the Company of a majority of the
voting stock of the Company to an unaffiliated third party or (iv) a
liquidation or dissolution of the Company.






	 	(c)	 	Post-Termination Matters.






	 	(i)	 	Return of Materials. Upon any termination of Employee’s employment,
Employee will promptly return to the Company all personal property of the Company and
all copies and originals of documents and other tangible impressions, in any medium,
containing confidential or proprietary information of the Company.





AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com









 









 












	 	(ii)	 	Expenses. The Company will pay to Employee all expenses permitted to
be reimbursed hereunder within ten (10) days after appropriate documentation has been
submitted by Employee.
	 
	 	(iii)	 	Noncompete; Nonsolicitation. During the term hereof and the period
specifically indicated in subsections (A), (B), (C) and (D) below, following termination
of Employee’s employment for any reason, Employee will not, directly or indirectly, on
behalf of himself or any behalf of anyone else:






	 	(A)	 	for a period of twelve (12) months, as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer, investor, lender, or
in any other capacity whatsoever (other than as the holder of not more than
five percent (5%) of the total outstanding stock of a publicly-held company),
engage in any business activity that directly competes with the kind or type
of products or services of developed or being developed, produced
marketed, distributed, planned, furnished or sold by the Company while
Employee was employed by the Company;
	 
	 	(B)	 	for a period of twelve (12) months, call upon any of the customers of the
Company who are such at the time of Employee’s termination of
employment hereunder, for the purpose of soliciting or providing any
product or service the same as that provided by the Company or for the
purpose of providing customers to any person or entity conducting a
business in direct competition with the business of the Company, as
conducted at the date of Employee’s termination (a “Competitive
Business”);
	 
	 	(C)	 	for a period of twelve (12) months, communicate with any of the other
employees, consultants or representatives of the Company for the purpose
of inducing such employees, consultants or representatives to discontinue
their relationship with the Company or to establish a relationship with
Employee or any Competitive Business; and
	 
	 	(D)	 	for a period of twelve (12) months, solicit, divert or take away or
attempt to solicit, divert or take away any of the customers, clients, licenses, strategic
partners or patrons of the Company who are such at the time of the
Employee’s termination of employment with the Company.






	 	(iv)	 	Reimbursement of Expenses: If the employee’s employment is terminated pursuant to
2(b)(i)(A) or (B) within the first year of employment, the employee shall return 100% of the
Relocation expenses of $150,000. Between the period’s of one year and two years, the employee
shall return 50% of the Relocation expenses.
	 
	 	(v)	 	Reimbursement of Advance Bonus: If the employee’s employment is terminated pursuant
to 2(b)(i)(A) or (B) prior to the 2007 bonus being paid out in 2008 (per standard procedures)
the entire amount of $25,000 will be returned to the company.





AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com




 









 






	 	(vi)	 	Reasonableness of Covenants. Employee covenants and agrees with the Company
that, if Employee violates any of his covenants or agreements under Section 2(c)(iii),
the Company will be entitled, subject to any limitations of Florida law, to an
accounting and repayment of all profits, compensation, commissions, remuneration or
benefits that Employee has directly realized or may directly realize as a result of,
growing out of or in connection with any such violation; such remedy will be in addition
to and not in limitation of any injunctive relief or other rights or remedies that the
Company is or may be entitled at law or in equity or under this Agreement. In the event
that, notwithstanding the foregoing, any part of the covenants set forth in Section
2(c)(iii) is held by a court of competent jurisdiction to exceed the restrictions which
such court deems reasonable and enforceable, such restrictions will be deemed to become
and thereafter be the maximum restrictions that such court deems reasonable and
enforceable.






	 	3.	 	Proprietary Information and Inventions. Employee will execute and deliver such
customary confidentiality and invention assignment agreements during the term hereof as the Company
requests of its employees. Employee represents and warrants to the Company that Employee
is not bringing with him, and covenants with the Company that he will not use in the course
of his employment with Company, any proprietary rights or intellectual property rights to
which he does not lawfully possess.






	 	4.	 	Miscellaneous.






	 	(a)	 	Governing Law. This Agreement will be subject to and governed by the laws
of the State of Florida, without regard to its conflict of laws provisions.
	 
	 	(b)	 	No Waiver; Amendment. Failure to insist upon strict compliance with any
provision hereof will not be deemed a waiver of such provision of any other provision hereof.
This Agreement may not be modified except by a written agreement executed by the
parties hereto.
	 
	 	(c)	 	Severability; Context. The provisions of this Agreement will be deemed
severable, and the invalidity or unenforceability of any one or more of the provisions hereof will not
affect the validity or enforceability of the other provisions hereof. Whenever required
by the context, the singular number will include the plural and the masculine or neuter
gender will include all genders.
	 
	 	(d)	 	Survival and Priority. Provisions herein which by their terms so provide
will survive any termination of this Agreement or of termination of Employee’s employment by the
Company. Each of the parties hereto acknowledge and agrees that this Agreement
supersedes any existing agreements and any agreements entered into after the date
hereof (unless specifically stating otherwise therein) to which the Company and
Employee are parties or subject to relating to the subject matter contained herein.
	 
	 	(e)	 	Successors.





AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com




 









 






	 	(i)	 	Company’s Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company’s business and/or assets shall
assume the Company’s obligations under this Agreement and agree expressly to perform the
Company’s obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. For all purposes under this Agreement, the term “Company” shall include any
successor to the Company’s business and/or assets that assumes this Agreement or that
becomes bound by the terms of this Agreement by operation of law.
	 
	 	(ii)	 	Employee’s Successors. Without the written consent of the Company, the
Employee shall not assign or transfer this Agreement or any right or obligation under
this Agreement to any other person or entity. Notwithstanding the foregoing, the terms
of this Agreement and all rights of the Employee hereunder shall inure to the benefit
of, and be enforceable by, the Employee’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.






	(f)	 	Equitable Relief; Arbitration.






	 	(i)	 	In the event of a breach or threatened breach by Employee of the provisions of
this Agreement, the Company will, in addition to any other rights and remedies
available to it, at law or otherwise, be entitled to an injunction to be issued by any
court of competent jurisdiction enjoining and restraining Employee from committing any
present violation or future violation of this Agreement.






	 	(ii)	 	The parties agree that any controversy, claim or dispute arising out of or
relation to this agreement, or the breach thereof, except as discussed herein or arising
out of or relating to the employment of the Employee, or the termination thereof,
including any statutory or common law claims under federal, state or local law,
including all laws prohibiting discrimination in the workplace, shall be resolved by
arbitration in Melbourne, Florida, in accordance with the employment dispute resolution
rules of the American Arbitration Association. The parties agree that any award rendered
by the arbitrator shall be final and binding, and that judgment upon the award may be
entered in any court having jurisdiction thereof. The parties further acknowledge and
agree that, due to the nature of the confidential information, trade secrets, and
intellectual property belonging to the Company to which Employee has or will be given
access, and the likelihood of significant harm that the Company would suffer in the
event that such information was disclosed to third parties, nothing in this Section
2(iii) shall preclude the Company from going to court to seek injunctive relief to
prevent Employee from violating the obligations established in Section 2(iii) of this
Agreement. Each party shall bear its own costs in any such arbitration, but the Company
shall bear the direct and indirect expenses of the arbitrator.





AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com




 









 







	(g)	 	No Assignment; Binding Nature. Employee may not assign his
rights or obligations hereunder and any attempted assignment will be null and void.
This Agreement will be binding upon and more to the benefit of the successors and
assigns of the Company and upon the heirs, administrators and executors of
Employee.
	 
	(h)	 	Notices. Unless otherwise herein provided, notice required or permitted
to be given to a party pursuant to the provisions of this Agreement will be in writing
and will be effective and deemed given under this Agreement on the earliest of: (i) the
date of personal delivery; (ii) the date of delivery by facsimile; or (iii) the next
business day after deposit with a nationally-recognized courier or overnight service,
including FedEx or Express Mail, for United Sates deliveries or three (3) business days
after such deposit for deliveries outside of the United States. All notices not
delivered personally or by facsimile will be sent with postage and other charges
prepaid and properly addressed to the party to be notified at the address set forth on
the signature page of this Agreement, or at such other address as such party may
designate by ten (10) days’ advance written notice to the other party hereto. All
notices for delivery outside the United States will be sent by facsimile, or by
nationally recognized courier or overnight service, including Express Mail. Notices to
the Company by Employee will be marked to the Chairman of the Board.
	 
	(i)	 	Counterparts. This Agreement may be executed in counterparts, each of
which will be an original and both of which together will constitute one instrument.




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








	 	 	 	 	 	 	 	 	 
	THE COMPANY:	 	 	 	EMPLOYEE:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	/s/ F. Scott Moody	 	 	 	/s/ Frederick R. Jorgenson	 	 
	Name:

	 	 

F. Scott Moody
	 	 	 	 

Frederick R. Jorgenson
	 	 
	Title:

	 	Chief Executive Officer	 	 	 	 	 	 






AuthenTec, Inc. • P.O. Box 2719 • Melbourne, FL 32902-2719

• Tel: 1-407-308-1300 • Fax: 1-407-308-1430 • www.authentec.com