EMPLOYMENT AGREEMENT
Exhibit 99.2
EXECUTION COPY
AGREEMENT, dated the 17th day of October 2006 (“the Effective Date”) between SafeNet, Inc., a
Delaware corporation (the “Company”) with offices at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, XX and Xxxxxxx
Xxxxxxxx (the “Executive”).
WITNESSETH:
WHEREAS, the Company and the Executive wish to enter into an employment and compensation
arrangement on the following terms and conditions;
1. Employment. Subject to the terms and conditions of this Agreement, the Company agrees
to employ the Executive as its Senior Vice President of Embedded Division during the Employment
Period (as defined below) and to perform such acts and duties and furnish such services to the
Company and its affiliates and related parties as the Company’s management shall from time to time
direct. The Executive hereby accepts such employment and agrees to devote his full time and best
efforts to the duties, provided that, subject to the approval of the Board of Directors (which
approval shall not be unreasonably withheld), the Executive may engage in other business activities
which (i) involve no conflict of interest with the interest of the Company and (ii) do not
materially interfere with the performance by the Executive of his duties under this Agreement.
2. Compensation. For services rendered to the Company during the term of this Agreement,
the Company shall compensate the Executive with an initial salary, payable in bi-weekly
installments, of Two Hundred Twenty Five Thousand Dollars ($225,000) per annum. Such salary shall
be effective as of the Effective Date and shall be reviewed on or before April 1 of each year of
the Employment Period (as defined below). Notwithstanding the foregoing, in no event shall the
Executive’s salary be less than Two Hundred Twenty Five Thousand Dollars ($225,000) per annum
during the Employment Period or any extension thereof.
3. Incentive Compensation.
a. The Executive shall also be entitled to annual incentive cash compensation of no less than
sixty-five percent (65%) of the applicable base salary if sales objectives and any other annual
objectives specified by the Chief Executive Officer are achieved. The incentive compensation shall
be paid to the Executive no later than ninety (90) days following the end of the calendar year.
The annual target bonus for the 2006 calendar year will be payable to the Executive subject to
achievement of the established sales and other objectives. The Compensation Committee has informed
the Executive that such objectives were achieved (on a percentage basis) as of the end of the third
calendar quarter for calendar year 2006, and therefore, the Company acknowledges and agrees that
Executive shall receive not less than seventy five percent (75%) of his annual incentive
compensation described above for work performed through the third calendar quarter of 2006.
b. Additional awards of long term incentive compensation, which may include cash, stock or
stock options, or other equivalent long term incentive compensation, may be awarded annually as
approved by the Compensation Committee.
4. Benefits. During the term of the Executive’s employment with the Company, the Executive
shall be eligible to receive such employee benefits as are provided to other similarly situated
executive officers of the Company, including family medical and dental, disability and life
insurance, and participation in pension and retirement plans, incentive compensation plans, stock
option plans and other benefit plans, in each case in accordance with the terms of the applicable
plans, as in effect from time to time. During the term of the Executive’s employment with the
Company, the Company may provide or cause to be provided to the Executive such additional benefits
as the Company may deem appropriate from time to time. The Company shall also provide the
Executive with the use of an automobile at Company expense, in accordance with the Company’s
automobile policy or practice as in effect from time to time.
5. Vacation. The Executive shall be entitled to annual vacations in accordance with the
Company’s vacation policies in effect from time to time for executive officers of the Company.
6. Employment Period. The “Employment Period” shall commence on the Effective Date of this
Agreement and shall terminate three (3) years thereafter. If the Executive shall remain in the
full time employ of the Company beyond the Employment Period without any written agreement between
the parties, this Agreement shall be deemed to continue on a month to month basis and either party
shall have the right to terminate this Agreement at the end of any ensuing calendar month on
written notice of at least 30 days.
7. Termination.
a. Executive’s employment with the Company shall be “at will.” Either the Company or the
Executive may terminate this Agreement and Executive’s employment at any time, with or without
Cause or Good Reason (as such terms are defined below), in its or his sole discretion, upon thirty
(30) days’ prior written notice of termination, subject to Section 8 of this Agreement.
b. Without limiting the foregoing Section 7.a., (i) the Executive may terminate his employment
with the Company at any time for Good Reason, or (ii) the Company may terminate his employment at
any time for Cause. “Good Reason” shall mean death, Disability (as defined below), a substantial
diminution in the Executive’s duties and/or responsibilities (including but not limited to a
diminution in title, or an adverse change in reporting structure), relocation of either Executive’s
office or the Company’s Headquarters greater than fifty (50) miles from their current locations, or
the Company’s failure or refusal to perform its obligations hereunder (including but not limited to
payment of all compensation due hereunder in full when due) following ten (10) days written notice
to such effect. “Cause” shall mean (i) the Executive’s willful, repeated or grossly negligent
failure to perform his duties hereunder or to comply with any reasonable or proper direction given
by or on behalf of the Company’s CEO which failure remains uncured for greater than ten (10) days
after Executive’s receipt of formal written notice of such failure; (ii) the Executive’s
conviction of, or plea of guilty or no contest to, a felony or
other crime involving moral turpitude; (iv) the Executive’s being found guilty of, or pleading
no contest to, any act of fraud, theft or dishonesty, or any intentional tort against the Company;
or (v) the Executive’s violation of any of the material terms, covenants, representations or
warranties contained in this Agreement, which violation remains uncured for greater than ten (10)
days after Executive’s receipt of formal written notice of such violation.
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c. “Disability” shall mean that the Executive, in the good faith determination of the Chief
Executive Officer of the Company, is unable to render services of the character contemplated hereby
and that such inability (i) may be expected to be permanent, or (ii) may be expected to continue
for a period of at least three (3) consecutive months (or for shorter periods totaling more than
six (6) months during any period of twelve (12) consecutive months). Termination resulting from
Disability may only be effected after at least thirty (30) days written notice by the Company of
its intention to terminate the Executive’s employment.
d. “Termination Date” shall mean (i) if this Agreement is terminated on account of death, the
date of death; (ii) if this Agreement is terminated for Disability, the date established by the
Company pursuant to Section 7.c. hereof; (iii) if this Agreement is terminated by the Executive,
the date the Executive thereafter ceases work; or (v) if this Agreement expires by its terms, the
last day of the term of this Agreement.
8. Severance.
a. If the Company terminates the employment of the Executive against his will and without
Cause, or the Executive terminates his employment for a Good Reason, the Executive shall be
entitled to receive, subject to receipt by the Company of an executed release and waiver of claims
(that has not been revoked during any applicable revocation period) in a form reasonably acceptable
to the Company (and which, other than the release and waiver of claims shall not impose upon
Executive any obligations or restrictions not contained in this Agreement, or limit Executive’s
rights hereunder): (i) salary and target incentive compensation accrued through the Termination
Date, plus (ii) the lesser of (a) $225,000 or (b) the balance of the Executive’s compensation
hereunder to the end of the Employment Period computed using the latest applicable salary rate, and
(iii) notwithstanding the vesting period provided for in the Company’s Stock Option Plan and any
related stock option agreements between the Company and the Executive for stock options granted
Executive by the Company, all then outstanding options shall be fully vested and exercisable as of
the Termination Date. The Company shall make severance payments pursuant to this section, in full,
within 30 days of the Termination Date. Notwithstanding the foregoing, the Company shall not be
required to pay any severance pay for any period following the Termination Date if the Executive
violates the provisions of Section 14, Section 15 or Section 16 of this Agreement. In such event,
the Company shall provide written notice to the Executive detailing such violation.
b. If the Executive is terminated by the Company for Cause or the Executive terminates
employment other than for Good Reason, then the Executive shall be entitled to receive compensation
and incentive compensation earned through the Termination Date only.
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c. To the extent COBRA shall be applicable to the Company or as provided by law, the Executive
shall be entitled to continuation of group health plan benefits following the Termination Date if
the Executive makes the appropriate conversion and payments. In the event the Company terminates
the employment of the Executive without Cause, or the Executive terminates his employment for a
Good Reason, the Company shall pay such COBRA premiums for a period of twelve (12) months from the
Termination Date, unless Executive earlier becomes eligible for equivalent employer paid benefits
as a result of any new employment.
d. The Executive acknowledges that, upon termination of his employment, he is entitled to no
other compensation, severance or other benefits other than those specifically set forth in this
Agreement or any applicable stock option agreement.
9. Expenses. The Company shall pay or reimburse the Executive for all expenses normally
reimbursed by the Company, reasonably incurred by him in furtherance of his duties hereunder an
authorized and approved by the Company in compliance with such rules relating there to as the
Company may, from time to time, adopt and as may be required in order to permit such payments as
proper deductions to the Company under the Internal Revenue Code of 1986, as amended (the “Code”),
and the rule and regulations adopted pursuant thereto now or hereafter in effect. In addition to
the foregoing, the Company shall reimburse the Executive for reasonable attorneys’ fees incurred by
the Executive for the negotiation and preparation of this Agreement, subject to the expense
documentation requirements of the Company’s expense reimbursement policy.
10. Facilities and Services. The Company shall furnish the Executive with office space,
secretarial, support staff and such other facilities and services as shall be reasonably necessary
for the performance of his duties under this Agreement.
11. Mitigation Not Required. In the event this Agreement is terminated, the Executive
shall not be required to mitigate amounts payable pursuant hereto by seeking other employment or
otherwise. The Executive’s acceptance of any such other employment shall not diminish or impair
the amounts payable to the Executive pursuant hereto, except as provided in 8.c. above.
12. Place of Performance. The Executive shall perform his duties primarily in Belcamp,
Maryland or locations within a reasonable proximity thereof, except for reasonable travel as the
performance of Executive’s duties may require.
13. Insurance and Indemnity. During the Employment Period, if available at reasonable
costs, the Company shall maintain, at its expense, officers and directors fiduciary liability
insurance covering the Executive and all other executive officers and directors in an amount of not
less than $1,000,000 per officer and/or director. The Company shall also indemnify the Executive,
to the fullest extent permitted by law, from any liability asserted against or incurred by the
Executive by reason of the fact that the Executive is or was an officer or director of the Company
or any affiliate or related party or is or was serving in any capacity at the request of the
Company for any other corporation, partnership, joint venture, trust, employment benefit plan or
other enterprise, including reasonable attorneys fees incurred by Executive. This indemnity shall
survive termination of this agreement. Executive shall be entitled to retain counsel of his
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choosing to defend against any third-party claims covered by this paragraph and Company hereby
agrees to reimburse Executive for all reasonable attorneys fees incurred on behalf of Executive
therefor. The Company shall advance all reasonable attorneys’ fees, including expenses, costs and
obligations incurred by or on behalf of Executive in connection with this paragraph, within twenty
days after the receipt by the Company of a statement or statements from Executive requesting such
advance or advances from time to time. Such statement or statements shall reasonably evidence the
expenses incurred by Executive.
14. Noncompetition.
a. The Executive agrees that, except in accordance with his duties under this Agreement on
behalf of the Company, he will not, during his employment, or for a period of six (6) months from
the Termination Date, participate in, be employed in any capacity by, serve as director,
consultant, agent or representative for, or have any interest, directly or indirectly, in any
enterprise which is engaged in the digital encryption business. In addition, the Executive agrees
that for a period of six (6) months after the Termination Date, the Executive shall not own, either
directly or indirectly or through or in conjunction with one or more members of his or his spouse’s
family or through any trust or other contractual arrangement, a greater than five percent (5%)
interest in, or otherwise control either directly or indirectly, any partnership, corporation, or
other entity which is engaged in the digital encryption business. Executive further agrees, for
such six (6) month period following the Termination Date to refrain from directly or indirectly
soliciting Company’s vendors, customers (or potential customers who were solicited by the Company
within six (6) months prior to the Termination Date and whoseidentity became known to the Executive
in connection with his relationship with or employment by the Company) or employees.
b. The Executive hereby agrees that damages and any other remedy available at law would be
inadequate to redress or remedy any loss or damage suffered by the Company upon any breach of the
terms of this Section by the Executive, and the Executive therefore agrees that the Company, in
addition to recovering on any claim for damages or obtaining any other remedy available at law,
also may enforce the terms of the this Section by injunction or specific performance, and may
obtain any other appropriate remedy available in equity.
15. Assignment of Patents. Executive shall disclose fully to the Company any and all
discoveries he shall make and any and all ideas, concepts or inventions which he shall conceive or
make during his period of employment, or during the period of six (6) months after his employment
shall terminate if, in whole or in part, are the result of his work with the Company. Such
disclosure is to be made promptly after each discovery or conception, and the discovery, idea
concept or invention will become and remain the property of the Company, whether or not patent
applications are filed thereon. Upon request and at the expense of the Company, the Executive shall
make application through the patent solicitors of the Company for letters patent of the United
States and any and all other countries at the discretion of the company on such discoveries, ideas
and inventions, and to assign all such applications to the Company, or at its order, forthwith,
without additional payment by the Company during his period of employment and for reasonable
compensation for time actually spent by the Executive at such work at the request of the Company
after the termination of the employment. He is to give the Company, its
attorneys and solicitors, all reasonable assistance in preparing and prosecuting such applications
and, on request of the Company, to execute all papers and do all things that may be reasonably
necessary to protect the right of the Company and vest in it or its assigns the discoveries, ideas
or inventions, applications and letters patent herein contemplated. Such cooperation shall also
include all actions reasonably necessary to aid the Company in the defense of its rights in the
event of litigation.
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16. Trade Secrets.
a. In the course of the term of this Agreement, it is anticipated that the Executive shall
have access to secret or confidential technical and commercial information, records, data
specifications, systems, methods, plans, policies, inventions, material and other knowledge
(“Confidential Material”) owned by the Company and its subsidiaries. The Executive recognizes and
acknowledges that included within the Confidential Material are the Company’s confidential
commercial information, technology, methods of manufacture, designs, and any computer programs,
source codes, object codes, executable codes and related materials, all as they may exist from time
to time, and that they are valuable special and unique aspects of the Company’s business. All such
Confidential Material shall be and remain the property of the Company. Except as required by his
duties to the Company, the Executive shall not, directly or indirectly, either during the term of
his employment or at any time thereafter, disclose or disseminate to anyone or make use of, for any
purpose whatsoever, any Confidential Material. Upon termination of his employment, the Executive
shall promptly deliver to the Company all Confidential Material (including all copies thereof,
whether prepared by the Executive or others) that is in the possession or under the control of the
Executive. The Executive shall not be deemed to have breached this Section if the Executive shall
be specifically compelled by lawful order of any judicial, legislative, or administrative authority
or body to disclose any confidential material.
b. The Executive hereby agrees that damages and any other remedy available at law would be
inadequate to redress or remedy any loss or damage suffered by the Company upon any breach of the
terms of this Section by the Executive, and the Executive therefore agrees that the Company, in
addition to recovering on any claim for damages or obtaining any other remedy available at law,
also may enforce the terms of this Section by injunction or specific performance, and my obtain any
other appropriate remedy available in equity.
17. Payment and Other Provisions After Change of Control
a. In the event of a Change of Control, notwithstanding the vesting period provided for in the
Company’s Stock Option Plan, and any related stock option agreements between the Company and the
Executive for stock options granted Executive by the Company, all options that are outstanding as
of the occurrence of a Change of Control shall be fully vested and exercisable upon such Change of
Control.
b. In the event a change of control occurs within the one (1) year period immediately
following the Effective Date, the Executive shall be paid, within ten (10) days following such
Change of Control, an amount in cash equal to the Executive’s 2007 calendar year annual base salary
(the “Success Bonus”). For purposes of this Section 17.b., a “change of control” shall
mean a Change of Control as defined in subsection d. below, except that with respect to a
change of control that is a Business Combination (within the meaning of Section 17.d.(iii)), such
Business Combination must be consummated within one (1) year of the Effective Date for the
Executive to be entitled to receive the Success Bonus. Payment of a Success Bonus, if any, shall
not impact on the Executive’s entitlement to receive a 2007 annual incentive compensation award in
accordance with Section 3.a. above or any of the payments described in 17.c. below.
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c. In the event the Executive’s employment with the Company is terminated within one (1) year
following the occurrence of a Change of Control (other than as a consequence of death or
disability) either (x) by the Company for any reason other than for Cause, or (y) by Executive for
Good Reason, then the Executive shall be entitled to receive from the Company, in lieu of the
severance payments otherwise payable pursuant to Section 8.a., subject to receipt by the Company of
an executed release and waiver of claims (that has not been revoked during any applicable
revocation period) in a form reasonably acceptable to the Company (and which, other than the
release and waiver of claims shall not impose upon Executive any obligations or restrictions not
contained in this Agreement, or limit Executive’s rights hereunder)the following:
(i) Base Salary: A lump sum equal to Executive’s annual base salary as in effect at the date
of termination, multiplied by two (2) shall be paid within four (4) weeks after the Termination
Date; and
(ii) Target Incentive Compensation: The amount of the Executive’s target incentive
compensation under the applicable Executive Bonus Plan for the fiscal year in which the date of
termination occurs, multiplied by two (2), shall be paid within four (4) weeks after the
Termination Date.
d. For purpose of this Agreement, the term “Change of Control” shall mean:
(i) The acquisition, other than from the Company, by any individual, entity or group (within
the meaning of Rule 13d-3 promulgated under the Exchange Act or any successor provision) (any of
the foregoing described in this Paragraph hereafter a “Person”) of 50% or more of either (a) the
then outstanding shares of Capital Stock of the Company (the “Outstanding Capital Stock”) or (b)
the combined voting power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Voting Securities”), provided, however, that any
acquisition by (x) the Company or any of its subsidiaries, or any employee benefit plan (or related
trust) sponsored or maintained by the Company or any or its subsidiaries or (y) any Person that is
eligible, pursuant to Rule 13d-1(b) under the Exchange Act, to file a statement on Schedule 13G
with respect to its beneficial ownership of Voting Securities, whether or not such Person shall
have filed a statement on Schedule 13G, unless such Person shall have filed a statement on Schedule
13D with respect to beneficial ownership of 50% or more of the Voting Securities or (z) any
corporation with respect to which, following such acquisition, more than 60% of, respectively, the
then outstanding shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the Outstanding Capital
Stock and Voting Securities immediately prior to such acquisition in substantially the same portion as their
ownership, immediately prior to such acquisition, of the Outstanding Capital Stock and Voting
Securities, as the case may be, shall not constitute a Change of Control; or
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(ii) Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board, provided that any individual
becoming a director subsequent to the date of hereof whose election or nomination for election by
the Company’s shareholders, was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating to the election of
the Directors of the Company (as such terms are used in Rule 14a-11 of Regulation 14A, or any
successor section, promulgated under the Exchange Act); or
(iii) Approval by shareholders of the Company of a reorganization, merger or consolidation (a
“Business Combination”), in each case, with respect to which all or substantially all holders of
the Outstanding Capital Stock and Voting Securities immediately prior to such Business Combination
do not, following such Business Combination, beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from the Business Combination; or
(iv) (a) a complete liquidation or dissolution of the Company or (b) a sale or other
disposition of all or substantially all of the assets of the Company other than to a corporation
with respect to which, following such sale or disposition, more than 60% of respectively, the then
outstanding voting securities entitled to vote generally in the election of directors is then owned
beneficially, directly or indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding Capital Stock and Voting
Securities immediately prior to such sale or disposition in substantially the same proportion as
their ownership of the Outstanding Stock and Voting Securities, as the case may be, immediately
prior to such sale or disposition.
e. The following shall apply in the event of any payment or distribution from the Company to
the Executive under Section 8 or this Section.
(i) Excise Tax. If any payment or distribution by the Company to the Executive or for
the Executive’s benefit, or the acceleration of the time of any payment or distribution or vesting
of any deferred compensation, stock option, restricted stock or other equity grant whether pursuant
to the terms of this Agreement or otherwise, (a “Payment”) constitutes a parachute payment within
the meaning of Section 280G(b)(2) of the Code and is subject to the excise tax imposed by Section
4999 of the Code, or any interest or penalties are incurred by the Executive with respect to such
excise tax (such excise tax together with any such interest and penalties are hereinafter
collectively referred to as the “Excise Tax”) the Company will make an additional payment (a
“Gross-Up Payment”) to the Executive in an amount such
that, after payment by the Executive of all taxes (including, any interest or penalties
imposed with respect to such taxes) including, without limitation, any federal, state or local
income and employment taxes and the Excise Tax imposed upon the Gross-Up Payment, the Executive
will retain an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Payment.
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(ii) Determination of Gross Up Payment. Subject to the provisions of paragraph (iii)
below, all determinations under this Section 17.e., including whether a Gross-Up Payment is
required and the amount of the Gross-Up Payment, will be made by a national certified public
accounting firm (the “Accounting Firm”) selected by the Company. The Accounting Firm shall provide
detailed supporting calculations to both the Executive and the Company within fifteen (15) days
after the later of the date of the Change in Control (or any other change in ownership or effective
control of the Company that triggers application of the Excise Tax) or the date of the termination
of employment of the Executive with the Company. All fees and expenses of the Accounting Firm will
be borne solely by the Company. For purposes of determining the amount of the Gross-Up Payment,
the Executive shall be deemed to pay federal income taxes at the highest applicable marginal rate
of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to
pay any applicable state and local income taxes at the highest applicable marginal rate of taxation
for the calendar year in which the Gross-Up Payment is to be made, net of the actual reduction in
federal income taxes which is reasonably expected to result from the deduction of such state or
local taxes if paid in such year (determined, however, with regard to limitations on deductions
based upon the amount of the Executive’s adjusted gross income). The initial Gross-Up Payment
determined pursuant to this paragraph (ii) will be paid to the Executive by the Company within five
(5) days after it receives the Accounting Firm’s determination. If the Accounting Firm determines
that no Excise Tax is payable by the Executive, it will furnish the Executive with a written
opinion that failure to report the Excise Tax on Executive’s applicable federal tax return will not
result in the imposition of a negligence or similar penalty. Any determination by the Accounting
Firm will be binding on both the Executive and the Company. Notwithstanding the foregoing, as a
result of uncertainty in applying Section 4999 of the Code, it is possible that the Company will
not have made Gross-Up Payments that it should have made hereunder (an “Underpayment”). If the
Company exhausts its remedies pursuant to paragraph (iii) hereof and the Executive is thereafter
required to pay any Excise Tax, the Accounting Firm will determine the amount of the Underpayment,
inform the Executive and the Company in writing of the Underpayment, and, within five (5) days of
receiving such written report, the Company will pay the amount of such Underpayment to the
Executive.
(iii) Notice and Payment of Excise Tax. The Executive must notify the Company in
writing of any claim by the Internal Revenue Service that if successful, would require the payment
by the Company of the Gross-Up Payment. The Executive must give such notification as soon as
practicable but not later than fifteen (15) days after the Executive is informed in writing of such
claim and the notification must apprise the Company of the nature of such claim and the date on
which such claim is required to be paid. The Executive agrees to not pay such claim before the
expiration of thirty (30) days following the date on which the Executive give such notice to the
Company (or such shorter period ending on the date that any payment of taxes with respect to such
is due). If the Company notifies the Executive in writing before the expiration of such 30-day
period that it desires to contest such claim, the Executive
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must (1) give the Company any information reasonably requested by the Company relating to such
claim, and (2) take such action in connection with contesting such claim as the Company reasonably
requests in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney selected by the Company; provided,
however, that the Company will directly pay all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and will indemnify and hold the Executive
harmless, on an after-tax basis, for any tax, including interest and penalties, imposed as a result
of such representation and payment of costs and expenses. The Company will control all proceedings
in connection with such contest and may, at its sole option, either direct the Executive to pay the
tax claimed and xxx for a refund or to contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any appropriate administrative
tribunal or court, as the Company may determine; provided, that if the Company directs the
Executive to pay such claim and xxx for a refund, the Company will advance to the Executive the
amount of such payment, on an interest-free basis, and will indemnify and hold the Executive
harmless, on an after-tax basis, from any tax, including interest or penalties, imposed with
respect to such advance. The Company’s control of the contest will be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder, and the Executive will be entitled
to settle or contest any other issue.
(iv) Refund of Excise Tax. If, after the Executive receives an advance by the Company
pursuant to paragraph (iii) hereof, the Executive becomes entitled to receive a refund claimed
pursuant to such paragraph (iii), the Executive will (subject to the Company’s complying with the
requirements of such paragraph (iii)) promptly pay to the Company the amount of such refund
(together with any interest thereon, after taxes applicable thereto). If, after the Executive
receives an amount advanced by the Company pursuant to paragraph (iii) hereof, a determination is
made that the Executive will not be entitled to any refund claimed pursuant to such paragraph
(iii), and the Company does not notify the Executive in writing of its intent to contest such
denial or refund before the expiration of thirty (30) days after such determination, the Executive
will not be required to repay such advance, and the amount of such advance shall offset, to the
extent thereof, the amount of the required Gross-Up Payment.
18. Notices. Any notice required or permitted to be given under this Agreement shall be
sufficient if in writing and if sent by registered or certified mail, return receipt requested to
his residence in the case of the Executive, or to its principal office in the case of the Company,
or to such other addresses as they may respectively designate in writing.
19. Entire Agreement; Waiver. This Agreement contains the entire understanding of the
parties with respect to the employment relationship between Company and the Executive, and
supercedes any prior agreements relating to such relationship, including any Change of Control
Agreement, and may not be changed orally but only by an agreement in writing, signed by the party
against whom enforcement of any waiver, change, modification or discharge is sought. Waiver of or
failure to exercise any rights provided by this Agreement in any respect shall not be deemed a
waiver of any further or future rights.
20. Binding Effect; Assignment. The rights and obligations of this Agreement shall bind
and inure to benefit of any successor of the Company by reorganization, merger or consolidation, or
any assignee of all or substantially all of the Company’s business or properties. The Executive’s
rights hereunder are personal to and shall not be transferable nor assignable by the Executive.
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21. Headings. The headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
22. Governing Law; Arbitration. This Agreement shall be construed in accordance with and
governed for all purposes by the laws and public policy of the State of Delaware applicable to
contracts executed and to wholly performed within such state. Any dispute or controversy arising
out of or relating to this Agreement shall be settled by arbitration in accordance with the rules
of the American Arbitration Association and judgment upon the award may be entered in any court
having jurisdiction thereover. The arbitration shall be held in Wilimington, Delaware or in such
other place as the parties hereto may agree. The Company acknowledges and agrees that it shall be
solely responsible for payment of all filing fees and hearing fees in connection with any
arbitration brought pursuant to this section. The prevailing party (if any, as determined by the
arbitrator) in arbitration shall be entitled to reimbursement by the non-prevailing party of its
reasonable attorneys fees incurred in connection with the arbitration.
23. Further Assurances. Each of the parties agrees to execute, acknowledge, deliver and
perform, and cause to be executed, acknowledged, delivered and performed, at any time and from time
to time, all such further acts, deeds, assignments, transfers, conveyances, powers of attorney
and/or assurances as may be necessary or proper to carry out the provisions or intent of this
Agreement.
24. Severability. The parties agree that if any one or more of the terms, provisions,
covenants or restrictions of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restriction of this Agreement shall be in full force and effect and shall in no way
be affected, impaired or invalidated.
25. Counterparts. This Agreements maybe executed in several counterparts, each of which
shall be deemed to be and original, but all of which together will constitute on and the same
Agreement.
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IN WITNESS WHEREOF, SAFENET, INC. has caused this instrument to be signed by a duly authorized
officer and the Executive has hereunto set his hand the day and year first above written.
SAFENET, INC.
| SAFENET, INC. | ||||
By |
/s/ Xxxxx Xxxx | |||
| Name: Xxxxx Xxxx | ||||
| Title: Director | ||||
/s/ Xxxxxxx Xxxxxxxx |
||||
| Xxxxxxx Xxxxxxxx | ||||
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