EXHIBIT 10.2
AMENDMENT NO. 2
TO
IDENTIX INCORPORATED
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and
entered into as of __________, 2002, by and between IDENTIX INCORPORATED, a
Delaware corporation (the "COMPANY") and XXXXXX XXXXXXXX ("XXXXXXXX").
BACKGROUND
A. The Company and XxXxxxxx entered into an Employment Agreement dated
as of October 19, 2000 and an Amendment No. 1 thereto dated as of August 22,
2001 (as so amended, the "ORIGINAL AGREEMENT") relating to XxXxxxxx'x service as
Chief Executive of the Company.
B. The Company and Visionics Corporation, a Delaware corporation, have
entered into an Agreement and Plan of Merger dated February 22, 2002 pursuant to
which Visionics Corporation will become the wholly-owned subsidiary of the
Company (the "MERGER").
C. In connection with the consummation of the Merger, the Company and
XxXxxxxx intend that XxXxxxxx will cease to serve as the Chief Executive Officer
of the Company but will continue to act as the Chairman of the Board of
Directors of the Company ("CHAIRMAN"), and the Company and XxXxxxxx desire to
amend the Original Agreement, effective as of the effective date of the Merger,
to describe certain promises, covenants and agreements with XxXxxxxx, including
his serving as Chairman following the Merger, and certain payments and other
consideration to be made available to XxXxxxxx as a result thereof.
X. XxXxxxxx is willing to amend the Original Agreement effective as of
the effective date of the Merger and to continue as Chairman on the terms and
subject to the conditions set forth in this Agreement. Until the effective date
of the Merger, the Original Agreement shall remain in full force and effect.
THE PARTIES AGREE AS FOLLOWS;
1. TITLE AND SERVICES.
1.1 POSITIONS WITH THE COMPANY.
(a) CESSATION AS CEO. Effective on consummation of the
Merger, XxXxxxxx shall cease to serve as the Chief Executive Officer of the
Company.
(b) POSITION FOLLOWING THE MERGER. Following the
effectiveness of the Merger, XxXxxxxx shall hold the position of Chairman. The
Company's Chief Executive Officer following the Merger (the "CEO") shall report
directly to the entire Board of Directors and not to XxXxxxxx as Chairman.
XxXxxxxx shall perform the duties and functions consistent
with the position of Chairman, including presiding over the meetings of the
Company's Board of Directors and stockholders, and such other duties as shall be
mutually agreed to by XxXxxxxx and the Board of Directors following consultation
with the Company's CEO.
1.2 COMMITMENT OF TIME. XxXxxxxx shall devote such of his business
time, energy and skill to serving as Chairman and to the affairs of the Company
as is reasonably required to perform the services described in Section 1.1(b).
2. TERM OF SERVICE.
2.1 SERVICES AS CHAIRMAN AND DIRECTOR. Pursuant to Section 1.1(b)
above, following the effectiveness of the Merger, XxXxxxxx shall remain as
Chairman. He shall retain such position until he ceases to serve as a director
of the Company for any reason, he resigns as Chairman (but not as a director) or
the Board of Directors acting by a majority of its members appoints another
director to act as Chairman of the Board. XxXxxxxx shall remain a director of
the Company following the Merger and shall serve as a director thereafter until
the earlier of his death, retirement or resignation as a director, or the
expiration of his term as a director if he is not then reelected as director by
the stockholders of the Company for another term.
2.2 TREATMENT OF STOCK OPTIONS.
(a) Notwithstanding anything to the contrary in the Original
Agreement, upon XxXxxxxx ceasing to be the Chief Executive Officer of the
Company pursuant to Section 1.1(a) hereof, (i) 600,000 of the stock options
granted to XxXxxxxx on October 19, 2000 pursuant to the Company's 2000 New
Employee Stock Incentive Plan shall not fully "vest" on the date XxXxxxxx ceases
to be Chief Executive Officer pursuant to Section 1.1(a) and such options shall
cease "vesting" on such date, (ii) such options shall be exercisable for ninety
(90) days after XxXxxxxx ceases to be Chairman, and (iii) to the extent that the
Company's right of repurchase shall not have otherwise lapsed pursuant to
Exhibit 7 of each such option agreement, as of the date XxXxxxxx ceases to be
Chief Executive Officer pursuant to Section 1.1(a), the Company shall, for
ninety (90) days after XxXxxxxx ceases to be Chairman, be entitled to exercise
such right of repurchase with respect to any such options which XxXxxxxx has
exercised. If XxXxxxxx has exercised any such options pursuant to Section 3.2(b)
of the Original Agreement through use of a promissory note, such note shall be
due and payable in full within ninety (90) days after XxXxxxxx ceases to be
Chairman. The remaining 150,000 of such options shall be treated in the manner
as the options referenced in Section 2.2(b) below.
(b) In accordance with the Original Agreement, effective
when XxXxxxxx ceases to be Chief Executive Officer pursuant to Section 1.1(a),
(i) the 600,000 stock options granted to XxXxxxxx on August 14, 2001 pursuant to
the Company's Equity Incentive Plan and the Company's 1992 Employee Stock Option
Plan shall fully "vest" and the Company's right of repurchase with respect to
any such options shall immediately lapse and (ii) such options shall be
exercisable for twelve (12) months after XxXxxxxx ceases to be Chairman. If
XxXxxxxx has exercised any such options pursuant to Section 3.2(b) of the
Original Agreement through use of a promissory note, such note shall be due and
payable in full within twelve (12) months after XxXxxxxx ceases to be Chairman.
3. PAYMENTS AND OTHER CONSIDERATION.
3.1 DEFINITIONS.
(a) "CAUSE" means: (i) an act of fraud, embezzlement, theft
or any other act constituting a felony or involving moral turpitude, causing
material harm, financial or otherwise, to the Company; (ii) a demonstrably
intentional and deliberate act or failure to act (other than as a result of
incapacity due to physical or mental illness) which is committed in bad faith by
XxXxxxxx, which causes or can be expected to cause material financial injury to
the Company; or (iii) an intentional and material breach of this Agreement that
is not cured by XxXxxxxx within thirty (30) days after written notice from the
Board of Directors specifying the breach and requesting a cure. For purposes of
this Agreement, no act, or failure to act, on the part of XxXxxxxx shall be
deemed "intentional" if it was due primarily to an error in judgment or
negligence, but shall be deemed "intentional" only if done, or omitted to be
done, by XxXxxxxx not in good faith and without reasonable belief that his
action or omission was in, or not opposed to, the best interest of the Company.
Notwithstanding the foregoing, XxXxxxxx shall not be deemed to have been
terminated for "Cause" hereunder unless and until there shall have been
delivered to XxXxxxxx a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the Board then in office at a meeting of
the Board of Directors called and held for such purpose (after reasonable notice
to XxXxxxxx and an opportunity for XxXxxxxx, together with his counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
XxXxxxxx had committed an act set forth above and specifying the particulars
thereof in detail. Nothing herein shall limit the right of XxXxxxxx or his
beneficiaries to contest the validity or propriety of any such determination.
(b) "CHANGE IN CONTROL" shall mean the occurrence of any one
of the following: (i) any "person", as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")
(other than the Company, a subsidiary, an affiliate, or a Company employee
benefit plan, including any trustee of such plan acting as a trustee) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company's then
outstanding securities; (ii) the election to a majority of the seats of the
Board of Directors of the Company of candidates who were not proposed by a
majority of the Board of Directors in office prior to the time of such election;
or (iii) the dissolution or liquidation (partial or total) of the Company or a
sale of assets involving fifty percent (50%) or more of the assets of the
Company (other than the disposition of a subsidiary) or other transaction or
series of related transactions pursuant to which the holders, as a group, of all
of the shares of the Company outstanding prior to the merger, reorganization or
other transaction hold, as a group, less than fifty percent (50%) of the shares
of the Company outstanding after the merger, reorganization or other
transaction.
(c) "RESIGNATION FOR GOOD REASON" is defined as XxXxxxxx'x
resignation as Chairman as result of any of the following events: (i) a material
diminution in his duties as Chairman of the Company, as set forth in this
Agreement; or (ii) a material diminution in the payments due under Section
3.2(a)(ii) and in the Additional Consideration target payable to XxXxxxxx during
the first two years following the effectiveness of the Agreement; or (iii) any
material breach by the Company of any provision of this Agreement, which breach
is not cured within thirty (30) days following written notice from XxXxxxxx.
(d) "TERMINATION OTHER THAN FOR CAUSE" means termination of
XxXxxxxx'x position as Chairman of the Company for any reason other than (i)
termination for Cause, or (ii) Voluntary Termination, including without
limitation a termination resulting from XxXxxxxx'x complete or partial
incapacity due to death or to physical or mental illness or impairment that
results in his inability to perform his duties and responsibilities hereunder in
the ordinary and usual manner required of a person in XxXxxxxx'x position for
ninety (90) consecutive days.
(e) "VOLUNTARY TERMINATION" means XxXxxxxx'x termination of
his position as Chairman of the Company other than by reason of a Resignation
for Good Reason or death of disability as described in Section 3.1(d) above.
3.2 PAYMENTS.
(a) GENERAL PAYMENTS. In consideration for the promises,
covenants, and agreements of XxXxxxxx set forth in this Agreement, XxXxxxxx
shall receive $2,000,000, provided XxXxxxxx does not incur a Cause termination
or a Voluntary Termination during the two-year period after which XxXxxxxx
ceases to serve as Chief Executive Officer of the Company, in payments as
follows:
(i) upon the effective date of XxXxxxxx'x ceasing to
serve as Chief Executive Officer pursuant to Section 1.1(a), the Company shall
pay to XxXxxxxx cash in the amount of $400,000;
(ii) $900,000 over the first two years after XxXxxxxx
ceases being Chief Executive Officer pursuant to Section 1.1(b) and while he is
Chairman of the Company payable in installments in accordance with the Company's
customary policy; and
(iii) during the first two years after XxXxxxxx ceases
being Chief Executive Officer pursuant to Section 1.1 (b), up to $350,000 per
year (the "ADDITIONAL CONSIDERATION") based upon objectives set by the Company's
Compensation Committee substantially similar to the objectives set for the
Company's Chief Executive Officer.
(b) OTHER PAYMENTS. Upon Termination Other Than for Cause or
Resignation for Good Reason, the Company shall pay XxXxxxxx cash in the amount
of $2,000,000 less the "Total Consideration" previously paid to XxXxxxxx to the
date of termination. "Total Consideration" shall mean the total of the amounts
paid under Section 3.2(a). Upon Voluntary Termination, the Company shall pay
XxXxxxxx $400,000 in cash, except to the extent the Total Consideration as of
the date of Voluntary Termination equals $1,600,000 or more, then the $400,000
shall be reduced to the extent necessary so that the Total Consideration and the
payment made pursuant to this sentence on Voluntary Termination together would
not exceed $2,000,000.
(c) FUTURE PAYMENTS. After two years from the effective date
of this Agreement, XxXxxxxx shall receive such payments as established by the
Board of Directors for serving as Chairman.
3.3 BENEFITS.
(a) BENEFITS. The Company shall continue coverage for
XxXxxxxx, at the Company's cost, under the Company's group medical, dental and
vision benefit plans and continue a life insurance policy insuring XxXxxxxx for
$1,000,000, in each case until the earlier of (i) XxXxxxxx reaching the age of
65 or (ii) XxXxxxxx accepting employment with a company, firm or other entity.
Following each year the Company shall report to XxXxxxxx his income attributable
to the medical, dental, vision and life benefits. XxXxxxxx shall be responsible
for income tax accrued due to the Company's payment of premiums for medical,
dental, vision and life benefits.
(b) EXPENSE REIMBURSEMENT. The Company agrees to reimburse
XxXxxxxx for all reasonable, ordinary and necessary expenses incurred by
XxXxxxxx in conjunction with his acting as Chairman consistent with the
Company's standard reimbursement policies. In addition, the Company shall
reimburse reasonable out-of-pocket air fare (coach class) and reasonable car
rental expenses incurred by XxXxxxxx related to his position with the Company.
In addition, the Company shall pay, as and when incurred, the reasonable legal
and valuation fees and other costs incurred by XxXxxxxx in connection with this
Agreement. Such fees and other costs shall include (without limitation) those
incurred in negotiating this Agreement.
3.4 INDEMNIFICATION AS OFFICER AND DIRECTOR. XxXxxxxx shall be
entitled to be indemnified by the Company for his service as Director and
Chairman to the same extent and in the same manner as he was indemnified prior
to the date hereof.
3.5 GROSS-UP PAYMENT. If a Change in Control shall occur during
the first two years after the effectiveness of the Merger, the following shall
apply:
(a) If there is a Termination Other Than for Cause or
Resignation for Good Reason within one year after a Change in Control, and if
any of the payments or benefits received or to be received by XxXxxxxx in
connection with a Change in Control or XxXxxxxx ceasing to serve as Chairman
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company) (all such payments and benefits, excluding the
Gross-Up Payment, referred to as the "TOTAL PAYMENTS") will be subject to the
excise tax (the "EXCISE TAX") imposed under Section 4999 of the Internal Revenue
Code of 1986, as amended (the "CODE"), the Company shall pay, at the time or
times specified in Section 3.5(d), to XxXxxxxx additional amounts (the "GROSS-UP
PAYMENT") such that the net amount retained by XxXxxxxx, after deduction of any
Excise Tax on the Total Payments and any Federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the
Total Payments.
(b) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(A) all of the Total Payments shall be treated as "parachute payments" (within
the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax
counsel ("TAX COUNSEL") selected by those individuals who were member of the
Company's Board of Directors immediately prior to the effective date of the
Change in Control and reasonably acceptable to XxXxxxxx, such payments or
benefits (in whole or in part) should not be treated by the courts as
constituting parachute payments, including by reason of Section 280G(b)(4)(A) of
the Code, (B) all "excess parachute payments" within the meaning of Section
280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in
the opinion of Tax Counsel, such excess parachute payments (in whole or in part)
should be treated by the courts as representing reasonable compensation for
services actually rendered (within the meaning of Section 280G(b)(4)(B) of the
Code), or are otherwise not subject to the Excise Tax, and (C) the value of any
noncash benefits or any deferred payment or benefit shall be determined in
accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All
fees and expenses of the Tax Counsel shall be borne solely by the Company.
(c) For purposes of determining the amount of the Gross-Up
Payment, XxXxxxxx shall be deemed to pay Federal income tax at the highest
stated marginal income tax rates for the calendar years in which the Gross-Up
Payments are to be made and state and local income taxes at the highest stated
marginal rates of taxation in the state and locality of XxXxxxxx'x residence in
the calendar year in which the Gross-Up Payments are to be made, net of the
maximum reduction in Federal income taxes which could be obtained from deduction
of such state and local taxes, taking into account the reduction in itemized
deductions under Section 68 of the Code, but not taking into account alternative
minimum taxes.
(d) Installments of the Gross-Up Payments shall be paid
(including by the Company making a withholding payment to the tax authorities)
as the Total Payments are paid to XxXxxxxx, unless the Excise Tax is due at an
earlier date, in which case, the Gross-Up Payment shall be made at such earlier
date, or unless it is initially determined by the Company or the Tax Counsel
that the Total Payments are not subject to the Excise Tax but after payment of
the Total Payments, it is finally determined following the proceedings described
in Section 3.5(e) and (f) that the Total Payments are subject to the Excise Tax,
in which case the Gross-Up Payment shall be made upon the imposition upon
XxXxxxxx of the Excise Tax following the proceedings described in Section 3.5(e)
and (f).
(e) XxXxxxxx shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of a Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten (10) business days after XxXxxxxx
is informed in writing of such claim and shall describe the nature of such claim
and the date on which such claim is requested to be paid. XxXxxxxx shall not pay
such claim prior to the expiration of the thirty (30) day period following the
date on which XxXxxxxx gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies XxXxxxxx in writing prior to the expiration of such
period that it desires to contest such claim, XxXxxxxx shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim;
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company and reasonably
satisfactory to XxXxxxxx;
(iii) cooperate with the Company in good faith in order
to effectively contest such claim; and
(iv) permit the Company to control any proceedings
relating to such claim as provided below;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including, but not limited to, additional interest and penalties and
related legal, consulting or other similar fees) incurred in connection with
such contest and shall indemnify and hold XxXxxxxx harmless, on an after-tax
basis, for any Excise Tax or other tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of costs
and expenses.
(f) The Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct XxXxxxxx to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and XxXxxxxx agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs XxXxxxxx to pay such
claim and xxx for a refund, the Company shall advance the amount of such payment
to XxXxxxxx on an interest-free basis, and shall indemnify and hold XxXxxxxx
harmless, on an after-tax basis, from any Excise Tax or other tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and
provided, further, that if XxXxxxxx is required to extend the statute of
limitations to enable the Company to contest such claim, XxXxxxxx may limit this
extension solely to such claim. The Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and XxXxxxxx shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other taxing
authority. In addition, no position may be taken nor any final resolution be
agreed to by the Company without XxXxxxxx'x consent if such position or
resolution could reasonably be expected to adversely affect XxXxxxxx (including
any other tax position of XxXxxxxx unrelated to the matters covered hereby).
(g) In the event that XxXxxxxx receives a refund of the
Excise Tax previously paid, XxXxxxxx shall repay to the Company, within five (5)
business days following the receipt of such refund of the Excise Tax previously
paid, the amount of such refund plus any interest received by XxXxxxxx from the
Internal Revenue Service on the refund, and an amount
equal to the reduction in XxXxxxxx'x Federal, state and local income tax
assuming that the repayment is deductible, using the assumptions set forth in
Section 2.5(c). If, after the receipt by XxXxxxxx of an amount advanced by the
Company in connection with an Excise Tax claim, a determination is made that
XxXxxxxx shall not be entitled to any refund with respect to such claim and the
Company does not notify XxXxxxxx in writing of its intent to contest the denial
of such refund prior to the expiration of thirty (30) days after such
determination, such advance shall be forgiven and shall not be required to be
repaid.
4. RESTRICTIVE COVENANTS.
4.1 NONCOMPETITION AND NONSOLICITATION.
(a) CONFIDENTIALITY AND INVENTIONS ASSIGNMENT AGREEMENT.
XxXxxxxx has previously executed the Company's standard employee confidentiality
and inventions assignment agreement, and execution of this Agreement shall
confirm that such agreement remains in full force and effect. This Section 4
shall be read in conjunction with the terms of any Company standard
confidentiality and inventions assignment agreement executed by XxXxxxxx and to
the extent there is a conflict that cannot otherwise be resolved, this Section 4
shall govern.
(b) NON-COMPETITION AND NON-SOLICITATION. XxXxxxxx, during
the term of XxXxxxxx'x service as Chairman of the Company and for a period of
two years after XxXxxxxx ceases to serve as Chairman (provided such two-year
period shall not extend beyond three years after XxXxxxxx ceases to be Chief
Executive Officer of the Company pursuant to Section 1.1.(b) (hereinafter the
"Term of Non-Competition"), agrees, not to (without prior written consent of the
Board of Directors of the Company) directly or indirectly, individually or as an
officer, director, employee, shareholder, consultant, contractor, partner, joint
venturer, agent, equity owner or in any capacity whatsoever, engage in any
business activity that the Company is conducting, or to XxXxxxxx'x knowledge, is
intending to conduct at the time he ceases to serve as Chairman (a "Competing
Business"). Furthermore, during the Term of Non-Competition, XxXxxxxx shall not,
without the prior written consent of the Board of Directors of the Company,
directly or indirectly solicit, recruit, encourage or induce any employees,
directors, customers, consultants, contractors or subcontractors of the Company
to leave the employ of the Company or to terminate or alter their agreements,
positions or business arrangements with the Company, as the case may be, either
on XxXxxxxx'x own behalf or on behalf of any other person or entity.
(c) INJUNCTIVE RELIEF. XxXxxxxx acknowledges and agrees that
damages will not be an adequate remedy in the event of a breach of any of the
obligations under this Section 4 and therefore agrees that the Company shall be
entitled (without limitation of any other rights or remedies otherwise available
to the Company and without the necessity of posting a bond) to obtain an
injunction from any court of competent jurisdiction prohibiting the continuance
or recurrence of any breach of this Section 4.
(d) GOVERNING LAW. This Section 4 shall be governed by and
construed in accordance with the laws of the State of Texas (without regard to
any conflicts-of-
law principle that would require the application of some other state's law) and,
where applicable, the laws of the United States.
5. MISCELLANEOUS.
5.1 WAIVER. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or other provision hereof.
5.2 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by personal or courier
delivery, facsimile or first class mail, certified or registered with return
receipt requested, and shall be deemed to have been duly given upon receipt if
personally delivered or delivered by courier, on the date of transmission if
transmitted by facsimile, or three (3) days after mailing if mailed, to the
addresses of the Company and XxXxxxxx contained in the records of the Company at
the time of such notice. Any party may Change such party's address for notices
by notice duly given pursuant to this Section 5.2.
5.3 EXPIRATION OF ORIGINAL AGREEMENT. Until the effective date of
the Merger, the Original Agreement shall remain in full force and effect. Except
as specifically provided for herein, the Original Agreement shall expire on and
be of no further force or effect on the effectiveness of the Merger.
5.4 HEADINGS. The section headings used in this Agreement are
intended for convenience of reference and shall not by themselves determine the
construction or interpretation of any provision of this Agreement.
5.5 GOVERNING LAW. Except for Section 4 hereof, this Agreement
shall be governed by and construed in accordance with the laws of the State of
California.
5.6 ARBITRATION. Any controversy or claim arising out of, or
relating to, this Agreement or the breach of this Agreement will be settled by
arbitration by, and in accordance with the applicable National Rules for the
Resolution of Employment Disputes of the American Arbitration Association and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction. The arbitrator(s) will have the right to assess,
against a party or among the parties, as the arbitrator(s) deem reasonable, (a)
administrative fees of the American Arbitration Association, and (b)
compensation, if any, to the arbitrator(s). Arbitration hearings will be held in
Dallas County, Texas.
5.7 SURVIVAL OF OBLIGATIONS. This Agreement shall be binding upon
and inure to the benefit of the executors, administrators, heirs, successors and
assigns of the parties; provided, however, that except as herein expressly
provided, this Agreement shall not be
assignable either by the Company (except to an affiliate or successor of the
Company) or by XxXxxxxx without the prior written consent of the other party.
5.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
5.9 WITHHOLDING. To the extent applicable, all sums payable to
XxXxxxxx hereunder shall be reduced by all federal, state, local and other
withholdings and similar taxes and payments required by applicable law.
5.10 ENFORCEMENT. If any portion of this Agreement is determined to
be invalid or unenforceable, such portion shall be adjusted, rather than voided,
to achieve the intent of the parties to the extent possible, and the remainder
shall be enforced to the maximum extent possible.
5.11 ENTIRE AGREEMENT; MODIFICATIONS. Except as otherwise provided
herein, this Agreement represents the entire understanding among the parties
with respect to the subject matter of this Agreement, and this Agreement
supersedes any and all prior and contemporaneous understandings, agreements,
plans and negotiations, whether written or oral, with respect to the subject
matter hereof, including, without limitation, any understandings, agreements or
obligations respecting any past or future compensation, bonuses, reimbursements
or other payments to XxXxxxxx from the Company. All modifications to the
Agreement must be in writing and signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph.
IDENTIX INCORPORATED
By:___________________________________
______________________________________
Name and title
______________________________________
XXXXXX XXXXXXXX
