Exhibit 10.44
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (the "Agreement") is entered into
by and between Identix Incorporated ("Identix") and Xxxxxxx Xxxxx ("Employee")
(each, a "Party" and together, "the Parties").
RECITALS
Employee is party to an existing Employment Agreement dated as of August
22, 2001 between Employee and Identix (the "Employment Agreement").
Identix and Employee mutually agree that Employee shall separate from
the employment of Identix on the terms set forth below.
AGREEMENT
The Parties agree as follows:
1. Employee hereby resigns her employment with Identix effective as of July
28, 2002 (the "Termination Date"). To the extent Employee currently
holds any positions as an officer or director of Identix or any of its
subsidiaries, joint ventures or affiliates, Employee hereby resigns from
any and all such positions, effective as of the Termination Date.
2. Contingent on Employee's compliance with her undertakings under this
Agreement, Identix shall pay Employee, on the Termination Date or on the
Effective Date of this Agreement, whichever is later, the gross sum of
four hundred thousand dollars and no cents ($400,000.00) in a lump sum,
less all appropriate taxes, withholdings and deductions. Employee shall
submit appropriate documentation for reimbursement of outstanding
business expenses no later than 15 days prior to the Termination Date,
and Identix shall pay on or before the Termination Date all reasonable,
documented and appropriate business expenses so submitted pursuant to
the standard expense reimbursement policies of Identix. Notwithstanding
the foregoing, Employee shall submit appropriate documentation for
reimbursement of outstanding business cellular phone expenses as
promptly as practicable after the Termination Date and Identix shall pay
all reasonable, documented and appropriate business cellular phone
expenses so submitted pursuant to the standard expense reimbursement
policies of Identix.
3. Identix shall pay Employee, on the Termination Date or on the Effective
Date of this Agreement, whichever is later, the cash equivalent of 12
months' of medical and dental COBRA insurance premiums for Employee and
her dependents, less all appropriate taxes, withholdings and deductions,
if any.
4. Identix shall pay Employee, on the Termination Date or on the Effective
Date of this Agreement, whichever is later, the cash equivalent of 12
months' of term life insurance premiums for Employee (based on such
premiums for Employee in effect prior to the Termination Date), less all
appropriate taxes, withholdings and deductions, if any.
5. The options to purchase Common Stock granted to Employee by Identix
identified on Attachment A hereto, which Employee agrees and
acknowledges are all of the options to which Employee is entitled, shall
fully vest on the Termination Date, and notwithstanding any provision of
any relevant stock option agreement or stock option plan to the
contrary, Employee shall have 12 months from the Termination Date to
exercise such options.
6. Prior to or on the Termination Date, Identix shall pay to Employee all
regular salary earned, and payment for all accrued and unused vacation
through the Termination Date, less all appropriate taxes, withholdings
and deductions. Identix shall also pay Employee, on the Termination Date
or the Effective Date of this Agreement, whichever is later, $50,000,
less all appropriate taxes, withholdings and deductions, representing
all bonus payments claimed by Employee to have accrued through the
Termination Date. Employee agrees and acknowledges that Identix makes
payment of this amount in part as a compromise of claims and without
prejudice to the methodology or calculation of the any claimed or
accrued bonus amounts of other Identix sales personnel. Employee
acknowledges that, except as provided herein, Employee shall receive no
payments, wages, bonuses or benefits from Identix after the Termination
Date.
7. Subject to payment and provision of the consideration described above,
Employee, for herself and for each of her representatives, heirs,
successors and assigns, does hereby release, acquit and forever
discharge Identix its affiliates, subsidiaries, divisions and related
companies, and its past, present and future employees, agents,
attorneys, officers, directors, shareholders, partners, heirs,
executors, administrators, insurers, successors and assigns (all
hereinafter "Releasees") from and against any and all claims, rights,
demands, actions, obligations, liabilities and causes of action, whether
asserted or unasserted, of any and every kind, nature and character
whatsoever, that she may now have or has ever had against Releasees, or
any of them, including those related to the termination of employment,
the prior lack of such employment, or any claims of discrimination,
harassment or retaliation, including but not limited to claims arising
under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, 42 U.S.C. Section 1981, the Age Discrimination in Employment Act,
the Older Workers' Benefit Protection Act, the Americans With
Disabilities Act, the Employment Retirement Income Security Act, the
California Fair Employment and Housing Act, the Virginia Human Rights
Act, the Virginians with Disabilities Act, and any other laws and
regulations relating to employment, and any claims arising under any
federal, state or local law, and all claims based upon acts or omissions
of Releasees, or any of them, whatsoever occurring or arising up to and
including the Termination Date.
7.1 Employee understands and agrees that this Agreement is a full and
final release covering all known and unknown and unanticipated
injuries, debts, claims or damages to her that have arisen or may
have arisen from any matters, acts, omissions or dealings
released in Paragraph 7. Therefore, as to these matters released
above, Employee hereby expressly waives and relinquishes any and
all rights or benefits that she may now have, or in the future
may have under the terms of California Civil Code Section 1542
and any similar law of any state or territory of the United
States. Said section provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIS
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Employee acknowledges that she is aware that she may hereafter
discover facts in addition to, or different from, those which she
now knows or believes to be true,
2
but it is her intention hereby, fully and finally and forever, to
settle and to release any and all matters, disputes and
differences, known or unknown, suspected or unsuspected, that do
now exist, may exist or heretofore have existed with respect to
those matters described in Paragraph 7.
7.2 Notwithstanding the foregoing general language, the parties agree
that the release of claims against Identix shall not extend to
breaches of this Agreement by Identix.
7.3 Employee represents and agrees that she has not filed and, except
as otherwise provided by law, will not file, refile, or prosecute
any claim, charge, grievance, complaint or action for monetary
damages, before any local, state or federal court, arbitrator, or
administrative agency, board or tribunal concerning any matter
which was or could have been raised in connection with any matter
released in this Paragraph 7. Employee agrees that she will not
knowingly apply or reapply for employment with Identix or any of
its affiliates.
8. Identix, on behalf of itself and, to the extent permitted by law, its
subsidiaries, affiliates, parent corporations or successors and, with
regard to derivative claims only, its past and present directors,
officers, general limited partners, agents and representatives, hereby
agrees to release and forever discharge Employee and her executors,
heirs, representatives and assigns, from any and all claims, debts,
demands, accounts, judgments, rights, cause of action, equitable relief,
damages, costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and
liability of every kind and character whatsoever, whether in law or
equity, based on any events or circumstances arising or occurring prior
to the Termination Date.
8.1 Identix understands and agrees that this Agreement is a full and
final release covering all known and unknown and unanticipated
injuries, debts, claims or damages that have arisen or may have
arisen to it from any matters, acts, omissions or dealings
released in Paragraph 8. Therefore, as to these matters released
above, and except as provided in Paragraph 8.2 below, Identix
hereby expressly waives and relinquishes any and all rights or
benefits it may now have, or in the future may have under the
terms of California Civil Code Section 1542 and any similar law
of any state or territory of the United States. Said section
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIS
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Identix acknowledges that it may hereafter discover facts in
addition to, or different from, those which it now knows or
believes to be true, but intends hereby, fully and finally and
forever, to settle and to release any and all matters, disputes
and differences, known or unknown, suspected or unsuspected, that
do now exist, may exist or heretofore have existed with respect
to those matters described in Paragraph 8.
8.2 Notwithstanding the foregoing general language, the parties agree
that the release of claims against Employee shall extend only to
matters with regard to which
3
Employee acted in good faith and in a manner she reasonably
believed to be in, or not opposed to, Identix' best interests,
shall not extend to matters with regard to which Employee acted
with willful misconduct, and further shall not extend to breaches
of this Agreement by Employee.
9. Also in consideration for the payments, benefits and undertakings
provided above, Employee and Identix agree that the existence of,
reasons for and terms of this Agreement will be held in the strictest
confidence and will not be disclosed, directly or indirectly, to any
person or entity, including but not limited to past, current or future
Identix employees; provided, however, that Identix may disclose
information that already has become public, on a "need to know" basis to
its employees and outside the company, to regulatory agencies, as
required by law, and to its tax advisors and attorneys; and further
provided that Employee may disclose information that has already become
public, and may disclose the financial terms of this Agreement as
required by law and to her tax advisors and attorneys, on the condition
that they agree to hold those terms in strictest confidence, and that
Employee agrees to accept responsibility for any breach of
confidentiality by those individuals. Employee specifically agrees that
she will not otherwise disclose that she has received the payments or
benefits described in this Agreement or that she received from Releasees
any payment, money, compensation, property or expense reimbursement in
any form or sum whatsoever under the terms of this Agreement. The
obligations of Identix and Employee under this Agreement are contingent
on the other party's compliance with this confidentiality provision as
well as all of such other party's other obligations under this
Agreement.
10. Payment of all monies and receipt by Employee of continuing benefits
hereunder shall be contingent on Employee (i) continuing to comply with
all provisions of this Agreement and the Identix Proprietary Information
and Inventions Agreement signed by Employee on April 2, 2001, a copy of
which is attached hereto as Attachment B, and (ii) not making
disparaging statements regarding Releasees or any of them, including but
not limited to statements regarding management of the Company or the
circumstances surrounding Employee's departure from Identix. Employee
agrees that this is a material provision of the Agreement. Employee
further agrees that the failure by Employee to adhere to the obligations
of confidentiality under the Identix Proprietary Information and
Inventions Agreement, through improper use or disclosure of Identix'
confidential information or trade secrets or otherwise, would cause
Identix significant loss, consequential damages and irreparable harm.
The Company and Employee agree that the language set forth on Attachment
C hereto will be included by the Company in a press release to be issued
by the Company in due course. The language will either be in a
stand-alone press release or in a press release dealing with additional
subject matter, in each case in the sole discretion of Identix. The date
and timing of the press release, whether as a stand-alone release or as
part of additional subject matter, shall be at the sole discretion of
the Company. Similarly, if issued as part of a press release dealing
with additional subject matter, the balance of the subject matter
included in the press release shall be at the Company's sole discretion.
11. This Agreement is binding on and for the benefit of Employee and
Releasees, and their respective heirs executors, administrators,
successors and assigns, wherever the context requires or admits.
4
12. Employee declares that prior to the execution of this Agreement, she
apprised herself of sufficient relevant information, through sources of
her own selection, in order that she might intelligently exercise her
own judgment in deciding whether to execute it, and in deciding on the
contents hereof. Employee further declares that this decision is not
predicated on or influenced by any declarations or representations of
the persons or entities released or any predecessors in interest,
successors, assigns, officers, directors, Employee, attorneys, or agents
of said entities other than as may be contained in this instrument, and
that she is executing this Agreement voluntarily, free of any duress or
coercion.
13. Employee expressly states that she has read this Agreement and
understands all of its terms and that all agreements and understandings
between the parties are embodied and expressed herein. This Agreement is
executed voluntarily and with full knowledge of its significance.
14. If any provision or portion of this Agreement shall be adjudged by a
court to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement, the application of such provision in
any other circumstances, or the validity or enforceability of this
Agreement.
15. This instrument contains the entire agreement of the parties with regard
to matters covered in it, and supersedes the Employment Agreement, and
supersedes any other prior agreements as to those matters, with the
exception of the Proprietary Information and Inventions Agreement dated
April 2, 2001, Attachment B hereto, which agreement remains in full
force and effect to the extent not inconsistent with this Agreement.
This Agreement may not be changed or modified, in whole or in part,
except by an instrument in writing signed by Employee and an officer of
Identix.
16. If any payment due Employee hereunder is due on a weekend or a bank
holiday, then for purposes of this Agreement, such payment shall be
deemed to be due on the next succeeding business day.
17. Employee expressly states that she has been given 21 days in which to
consider whether to enter into this Agreement, that Identix has advised
her to consult with an attorney, and that she has done so. This
Agreement does not become effective until 7 days after its execution.
Employee understands that she may revoke this Agreement at any time
during the 7 days after its execution. It is agreed that any such
revocation must be received in writing by Identix' Chief Executive
Officer within said 7-day period in order to be effective. This
Agreement becomes effective on the 8th day following Employee's
execution of it ("Effective Date"). All time limits refer to calendar
days unless otherwise specified.
Date
------------------------------- ---------------------------
Xxxxxxx Xxxxx
Identix Incorporated
5
By Date
----------------------------- ---------------------------
6
ATTACHMENT A
XXXXXXX XXXXX OPTIONS
IDENTIX Page: 1
INCORPORATED
ID: 00-0000000 File: Optstmt
000 Xxxxxx Xxxxx Date: 6/27/02
Los Gatos, CA Time:
95032 1:01:14PM
ID: ###-##-#### As of 7/28/02
NUMBER OPTION PLAN TYPE GRANTED PRICE VESTED UNVESTED OUTSTANDING
DATE
00001006 4/2/01 2000 NQ 75,000.00 $8.2000 23,438.00 51,562.00 75,000.00
00001138 7/26/01 1995 ISO 100.00 $4.7500 100.00 0.00 100.00
00001305 1/29/02 1995 ISO 40,000.00 $9.9100 0.00 40,000.00 40,000.00
115,100.00
TOTAL 0 23,538.00 91,562.00 115,100.00
7
ATTACHMENT B
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
8
ATTACHMENT C
If issued in stand alone release:
"Identix Incorporated announced today that Xxxxxxx Xxxxx, Executive Vice
President of Sales is leaving the company to pursue other opportunities. Her
departure takes effect on July 28, 2002. Xx. Xxxxx joined Identix in April 2001
as Executive Vice President of Sales and has been responsible for the worldwide
sales force for Identix' full range of fingerprint product offerings, launching
an enterprise sales initiative and cultivating new channel partner
relationships."
If issued as part of press release dealing with additional subject matter:
"On an unrelated matter, Identix also announced today that Xxxxxxx Xxxxx,
Executive Vice President of Sales is leaving the company to pursue other
opportunities. Her departure takes effect on July 28, 2002. Xx. Xxxxx joined
Identix in April 2001 as Executive Vice President of Sales and has been
responsible for the worldwide sales force for Identix' full range of fingerprint
product offerings, launching an enterprise sales initiative and cultivating new
channel partner relationships."
Note: In either case, if press release is issued, for any reason whatsoever,
after Termination Date, the tense of the release would be amended appropriately
to reflect past tense rather than future.
9
