EXHIBIT 10.10
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Agreement"), entered into on this 10th day of
December, 1998, by and between The National Registry Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxx ("Employee").
WITNESSETH
WHEREAS, Employee has been the Chief Executive Officer of the Company and
has made outstanding contributions to the Company;
WHEREAS, the Company desires to reward Employee for Employee's loyalty and
distinguished service to the Company and to provide incentives for Employee to
remain dedicated to the Company presently and through any potential change in
the controlling ownership of the Company;
WHEREAS, the Company desires to provide Employee, as additional
compensation for his service to the Company, with a severance package over and
above the compensation currently earned by Employee;
NOW, THEREFORE, in consideration of the above recitals, the terms and
covenants of this agreement, and other valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
1. Severance. Upon the termination of the Employee's employment by the
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Company other than for Cause (as hereinafter defined) or by the Employee within
ninety (90) days of an event that constitutes Good Reason (as hereinafter
defined) the Company shall provide the following severance benefits to Employee,
Employee shall receive, subject to Employee's execution of a letter in the form
of Exhibit A hereto (a "Waiver Letter") as required by Section 11 hereof, (a)
three month's salary payable in equal biweekly amounts based upon the annual
salary of Employee as of the date of termination, plus (b) a lump sum amount
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equal to any earned and unused vacation and sick time and payable within thirty
(30) days of termination, plus (c) the laptop or other portable computer device
----
utilized by Employee, if any, as of the date of termination, plus (d) all issued
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and outstanding options granted by the Company to Employee shall, to the extent
unvested on the date of termination, become fully vested on such date and
exercisable (to the extent such options have not lapsed and have not been
exercised prior to the date such employment is terminated) for a period of one
year from the date of termination, plus (e) any additional severance as provided
for under the Company's standard executive severance policy in effect as of the
date of this Agreement.
2. Termination. Employee shall not be eligible to receive the severance
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benefits specified in Section 1 of this Agreement in the event that Employee is
terminated by the Company for Cause.
3. Term of Employment. It is expressly agreed that either the Company or
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Employee can terminate Employee's employment at will. Nothing in this Agreement
shall grant to Employee the continued right of employment or any other rights
pertaining to employees generally.
4. Non-disparagement. In consideration of the Company's agreement to
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provide the benefits on the terms and subject to the conditions set forth
herein, Employee agrees to refrain from making any criticism or disparaging
comments about the Company following Employee's term of employment.
Furthermore, Employee agrees to return immediately upon termination, and to
maintain in strictest confidence and not to use in any way, any proprietary,
confidential, or other nonpublic information or documents relating to the
business and affairs of Company and its affiliates. Employee further agrees
that the existence and all terms of this agreement, including the terms and
conditions contained in the attachment, shall be kept strictly confidential and
that any disclosure to anyone for any purpose whatsoever (save and except
disclosure to financial institutions as part of a financial statement) by
Employee or his agents, representa-tives, heirs, children, spouse, employees, or
spokespersons shall be a breach of this agreement and shall release the Company
from further performance hereunder.
5. Governing Law. This Agreement shall be construed and governed in all
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aspects by the laws of the State of Delaware (exclusive of conflicts of law
principles).
6. Modification. This Agreement shall not be modified or amended except
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as agreed to in writing signed by each party or an authorized representative of
each party.
7. No Waiver. The failure of either party to this Agreement to insist
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upon the performance of any of the terms and conditions of this Agreement, or
the waiver of any breach of any of the terms and conditions of this agreement,
shall not be construed as thereafter waiving any such terms and conditions, but
the same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
8. Headings. Titles to the sections of this Agreement are solely for the
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convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this Agreement.
9. Entire Agreement. This Agreement constitutes the entire agreement and
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understanding, and merges and supersedes all prior discussions, agreements and
understandings between the parties regarding the subject matter described
herein.
10. Survival of Indemnification. All indemnification obligations
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undertaken by the Company on behalf of the Employee whereby the Company has
agreed to indemnify Employee against and in respect of any damages, losses,
claims, or liabilities, including, where applicable, any costs, expenses, and
reasonable fees incident or related thereto (including reasonable attorney's
fees) whether arising by contract or under the Articles of Incorporation or
Bylaws of the Company or otherwise shall survive the
execution of this Agreement, the termination of Employee's employment and the
execution by Employee of a Waiver Letter.
11. Condition to Receipt of Benefits. As a condition precedent to
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receiving the benefits provided for under this Agreement, Employee must sign the
attached Letter of Waiver on the date of Employee's termination. The Company
shall not be obliged to provide Employee the benefits specified under this
Agreement in the event that Employee revokes or withdraws or otherwise
repudiates such Waiver Letter.
12. Entire Agreement. This Agreement shall supersede and render null and
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void any prior severance agreement between the Company and Employee.
13. Definitions. The defined terms used in this Agreement shall have the
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following meanings:
(a) "Cause" for termination shall exist (i) if Employee is convicted
of or pleads guilty to any felony (except if committed upon advice from counsel
to the Company), or (ii) if Employee has engaged in conduct or activities
involving moral turpitude materially damaging to the business or reputation of
the Company or (iii) if Employee violates any law, rule, regulation or order of
any governmental authority, thereby exposing the Company to potential material
civil or criminal penalties unless the Employee has done so upon advice from
counsel to the Company; or (iv) in the event of Employee's gross misfeasance,
intentional misconduct or fraud in the performance of his responsibilities to
the Company as set forth by the Board of Directors of the Company, or (v) if
Employee knowingly misappropriates for his own purpose and benefit, any property
of the Company or appropriates any corporate opportunity of the Company, or (vi)
if Employee willfully fails or refuses to obey any written direction of the
Company.
(b) "Change in Control" shall refer to a change in control of the
Company following the date hereof of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act");
provided that, without limitation, such a change in control shall be deemed to
have occurred if (i) a tender offer shall be made and consummated for the
ownership of outstanding voting securities of the Company having forty percent
(40%) or more of the combined voting power of the Company except so long as more
than fifty percent (50%) of the combined voting power of the Company is held by
an existing Affiliate, (ii) the Company shall be merged or consolidated with
another corporation and as a result of such merger or consolidation forty
percent (40%) or more of the combined voting power of the combined or surviving
entity shall be owned (directly, indirectly, beneficially or of record) by a
person, as defined in Sections 13(d) and 14(d) of the Exchange Act (a "Person"),
(iii) the Company shall sell, lease, exchange or transfer substantially all of
its assets to another corporation, entity or person which is not a wholly-owned
subsidiary or as to which a majority of its combined voting power is not held by
the Company or an existing Affiliate, (iv) a Person shall acquire outstanding
voting securities of the Company (whether directly, indirectly, beneficially or
of record) having forty percent (40%) or more of the combined voting
power of the Company, or (v) the shareholders of the Company approve a plan or
proposal for the liquidation or dissolution of the Company, or (vi) during any
period of two consecutive years, the individuals who, at the beginning of such
period served on the Board of Directors, cease for any reason to constitute at
least a majority thereof, unless the election, or the nomination for election by
the Company's shareholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period. For purposes hereof, ownership of voting securities
shall take into account and shall include ownership as determined by applying
the provisions of Rule 13d-3 (as in effect on the date hereof) under the
Exchange Act. A sale or other change in control of any subsidiary of the Company
by which the Employee is employed shall not be deemed a Change in Control of the
Company for purposes of this Agreement.
(c) "Good Reason" refers to the occurrence of any of the following
events:
(i) Employee is not reelected to or is removed (other than for
Cause) from the office of the President or as the Chief Executive Officer of the
Company;
(ii) Employee is not reelected to or is removed (other than for
Cause) from the Board of Directors of the Company;
(iii) action is taken by the Company or the Board of Directors
of the Company that has the effect of divesting Employee, or materially
interfering with the exercise by Employee, of authority as Chief Executive
Officer (other than for Cause);
(iv) the Company fails to obtain the written assumption of this
Agreement by any successor of the Company or any assignee of all or
substantially all of its assets at or prior to such succession or assignment;
(v) the Company requires Employee to relocate more than thirty
(30) miles from Employee's current location; or
(vi) a Change in Control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the date first above written.
The National Registry Inc., "Employee"
/s/ Xxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx
Its: Chairman, Compensation
Committee Board of Directors
SAFLINK Corporation
00000 X.X. 00/xx/ Xxxxx, XXX 000
Xxxxxxx, XX
000.000.0000
FAX 000.000.0000
XXXX://xxx.XXXXXXX.xxx
May 15, 2001
Xx. Xxxxxxx X. Xxxxxxx
00000 XX 000/xx/ Xxxxxx
Xxxxxxx, XX 00000
RE: Modification to Severance Agreement dated 12/10/98
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Dear Xxxx:
This letter agreement amends the above referenced severance agreement
between you and The National Registry Inc. (now SAFLINK Corporation) dated
December 10/th/ 1998. Section 1 of the severance agreement will be replaced in
its entirety with the following:
1. Severance. Upon the termination of the Employee's employment by the
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Company other than for Cause (as hereinafter defined) or by the
Employee within ninety (90) days of an event that constitutes Good
Reason (as hereinafter defined) the Company shall provide the
following severance benefits to Employee, subject to Employee's
execution of a letter in the form of Exhibit A attached hereto (a
"Waiver Letter") as required by Section 11 hereof, (a) a lump sum
amount equal to six (6) month's salary based upon the annual salary of
Employee as of the date of termination, plus (b) any earned and unused
----
vacation and sick time payable, plus (c) the laptop or other portable
----
computer device utilized by Employee, if any, as of the date of
termination, plus (d) all issued and outstanding options granted by
----
the Company to Employee shall, to the extent unvested on the date of
termination, become fully vested on such date and exercisable (to the
extent such options have not lapsed and have not been exercised prior
to the date such employment is terminated) for a period of one year
from the date of termination, plus (e) any additional severance as
provided for under the Company's standard executive severance policy
in effect as of the date of this Agreement. Severance benefits due
under this section will be paid not later than then (10) days
following termination.
If this modification is acceptable, please acknowledge in the space
provided below.
SAFLINK Corporation
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Chief Financial Officer
/s/ Xxxxx X. Xxxxxx
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Xxxxx Xxxxxx
Chairman of the Compensation Committee of the Board of Directors
/s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
Board Member
ACKNOWLEDGED
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
