Exhibit 10.4
February 24, 2001
Xxxx X. Xxxx
0000 Xxx Xxxx Xxxx
Xxxxx, XX 00000
SEPARATION AGREEMENT AND RELEASE
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Dear Xxxx:
This letter agreement ("Agreement") sets forth the arrangements we have made
with respect to your separation from Entrust Technologies Inc. The arrangements
will be as follows:
1) As used in this Agreement, the term "ENTRUST" and/or "Company" shall mean
Entrust Technologies Inc., its parent, subsidiaries, affiliates,
successors, assigns; all past and present officers, directors, employees
and agents (in their individual and representative capacities) of ENTRUST;
and TriNet Employer Group, Inc.
2) Your employment relationship with ENTRUST shall continue until the close of
business on February 22, 2001 inclusive of any vacation accrued as of the
date hereof. Thereafter, your employment relationship with ENTRUST will be
ended and will not resume. In addition, you hereby confirm your resignation
from all director and officer positions you hold with Entrust Technologies
Inc, its subsidiaries and affiliates effective as of that date.
3) You acknowledge and represent that a time period of twenty-one (21)
calendar days has been provided to you in order for you to consider the
subject matter of this Agreement and that the Company has advised you to
consult with an attorney of your choosing prior to signing the Agreement.
In addition, you acknowledge that you will have seven (7) calendar days
following the execution of this document to revoke this Agreement by
written notice. To be valid, the letter of revocation must be received by
Xx. Xxx Xxxxxx, Vice President, Legal Affairs, Entrust Technologies, Inc.,
0000 Xxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx, XX 00000, not later than the
close of business seven (7) calendar days after you sign this Agreement.
4) Following upon your return to the Company of an executed agreement and
expiration of the seven (7) day revocation period, the Company shall make a
severance payment to you calculated as follows:
i) $288,461.54 reflecting 60 weeks (the "severance period") of base
pay at your salary on the date hereof;
ii) $81,000 reflecting the bonus payable for the Year 2000;
iii) $14,423.08 reflecting three (3) weeks of accrued untaken
vacation; and
iv) $11,572.82 reflecting the amount equal to the cost to you of
maintaining your current group health and dental coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA") and continuing your current life insurance
during the severance period. This payment is conditioned upon
your completing the appropriate COBRA and life insurance
applications;
v) up to $2500 to be paid to Deloitte & Touche LLP on your behalf
in respect of preparation of your 2000 tax return.
5) With respect to any monies or monetary equivalents to be paid hereunder,
Entrust, may withhold applicable federal, state and local tax withholding.
6) All ENTRUST company provided benefits not expressly extended to you
pursuant to this Agreement (including any matching 401K Plan contributions)
shall continue in effect until 12:01 a.m. March 1,
2001 except to the extent that current employment is required to qualify
for participation in or receipt of such benefits. You specifically
acknowledge that, effective immediately, you will not be eligible for any
future awards or stock options under the Amended and Restated 1996 Stock
Incentive Plan or to participate in the Employee Stock Purchase Plan.
Provided that you comply with all material aspects of this Agreement,
however, you will have the right to exercise any vested options for up to 3
months following the completion of the Consulting Term described in
Paragraph 15.
7) We will provide to you the COBRA forms to allow you to continue your
current group health and dental coverage during the severance period or
until you become eligible for another plan. We will also provide you with
the application forms to allow you to continue your life insurance coverage
during the severance period.
8) You shall reconcile and settle, as soon as possible, and in no event later
than March 31, 2001 any expenses incurred by you in connection with ENTRUST
business for which you are entitled to reimbursement.
9) With respect to the class action securities lawsuit referred to as In re
Entrust Securities Litigation, No. 2-00-CV-119-TJW (E.D. Tex.), you agree
to cooperate reasonably in the defense of the litigation, including signing
affidavits and making yourself available for interviews, deposition
preparation, deposition, and trial. In the event you are requested to
assist with litigation activities other than those in which you would be
required to participate as a named party, ENTRUST agrees to pay all
reasonable documented out-of pocket costs and lost income up to a maximum
of $1,000 per day incurred in connection with such activities after the
severance period. Without ENTRUST's prior consent, you agree not to comment
publicly on the litigation or any of the issues in the litigation. Without
ENTRUST's prior consent, you also agree not to discuss the litigation with
the plaintiffs, their attorneys, or their representatives, or to cooperate
with the plaintiffs. In return, Entrust affirms its duty to indemnify you
to the fullest extent permitted pursuant to the terms of the ENTRUST
corporate charter and bylaws and ENTRUST agrees to make best efforts to
obtain maximum insurance coverage for you pursuant to the terms of the
insurance policy. In addition, Entrust agrees to provide the contractual
indemnification described in Appendix A to this Agreement.
10) You hereby recognize and reaffirm the promises and obligations in the
Intellectual Property and Confidentiality Agreement executed by you on or
about April 28, 1997. You further agree that you will maintain the
confidentiality of all trade secrets, confidential, proprietary,
commercial, technical or other information of which you gained knowledge
during the course of your employment with ENTRUST. In particular, and in
consideration of the provisions of paragraph 4 of this Agreement, you agree
not to reveal, disclose, use, or cause to be revealed, disclosed, or used
any such information or material, or any other matter with respect to
ENTRUST, which is injurious or harmful to any of the Company's interests,
or the interest of its employees, officers or directors. Specifically, you
shall issue no public statement on the business affairs, policies or the
like of ENTRUST without the prior written consent of ENTRUST. Without
limiting the foregoing, you shall not disparage ENTRUST in any respect.
11) ENTRUST will not speak of you in disparaging terms nor in any other
negative way communicate about your employment with ENTRUST.
12) You acknowledge and agree that the nature of the trade secrets and other
proprietary and confidential information to which you have been given
access through your employment with ENTRUST, including without limitation
that information and material protected by the Intellectual Property and
Confidentiality Agreement executed by you on or about April 28, 1997 and by
paragraph 10, above, will make it difficult if not impossible to perform in
a similar capacity for a business offering products or services similar to
those offered by ENTRUST without disclosing or utilizing such information
and material. You further acknowledge and agree that the products and
services of ENTRUST are marketed throughout the United States in a highly
competitive market. Accordingly, you agree that,
for a period of 63 weeks following the execution of this Agreement, without
ENTRUST'S prior approval, you will not:
i) accept employment in any capacity, either directly or through a
subsidiary or affiliate, with any of the businesses identified on
Appendix B hereto. You further acknowledge and agree that the
foregoing promise is reasonable in geographic area, scope of activity,
and duration in light of the specific facts of your employment with
ENTRUST; or
ii) recruit, hire, assist others in recruiting or hiring, discuss
employment with, or refer to others for employment any person who is,
or within the six-month period immediately preceding the date of any
such activity was, an employee of ENTRUST.
13) You agree to treat this Agreement and all the terms and conditions
expressed herein as confidential. Accordingly, you agree that you will not
directly or indirectly disclose, publicize or discuss this Agreement,
including its terms and/or conditions, with any employee and/or former
employee of ENTRUST or any other person except your immediate family
members, attorney, accountant, financial advisor, and/or outplacement
advisor. In the event that you discuss this Agreement with any of the
aforementioned individuals, it shall be your duty, responsibility and
obligation to advise said individual(s) of the confidential nature of this
Agreement and direct them not to discuss the terms and/or conditions of
this Agreement with any other person. Notwithstanding the foregoing, this
obligation of confidentiality shall cease in respect of those parts of the
Agreement that are publicly disclosed by ENTRUST.
14) You shall return to ENTRUST any and all property of ENTRUST and/or
affiliates currently in your possession and/or subject to your control
including, but not limited to, any and all computer equipment, facsimile
machine, credit cards, identification cards, files, memoranda,
correspondence, compensation surveys, drawings, designs, financial records,
customer lists, personnel files, personnel lists or the like, whether such
materials shall be written instruments or tapes in electronic and/or
recorded format. ENTRUST agrees that you may retain the cellular telephone
that you have heretofore used for ENTRUST business; you acknowledge and
agree that, effective immediately, you will be responsible for the payment
of all charges for use and maintenance of the cellular telephone and that
within three (3) months of the execution of this Agreement, you will take
all actions and execute any papers necessary to assume personal ownership
of the cellular telephone service account and to terminate ENTRUST's
ownership of and/or affiliation with the account. Notwithstanding the
foregoing, with respect to the Lincoln Navigator leased by the Company and
in your possession, you shall either return it to the Company at the end of
your severance period in good working condition or take assignment of the
lease; provided, that you have the option of returning the Lincoln
Navigator to ENTRUST at any time during the severance period and ENTRUST
will pay you the cash equivalent of the lease payments remaining until the
end of the severance period.
15) For the six month period immediately following your separation (the
"Consulting Term"), you agree to serve in the capacity of a consultant,
available upon reasonable request to provide strategic advice to ENTRUST's
executive team. Thereafter, upon reasonable request, and at mutually
convenient times and places, you agree to provide to ENTRUST advice,
assistance and information related to your former job duties, including,
but not be limited to, offering and explaining evidence and providing sworn
statements(s), deposition testimony and trial testimony as may be deemed
necessary by ENTRUST for the preparation of its position in any legal
proceedings(s) involving issues brought against or initiated by ENTRUST of
which you have knowledge. In the event you are requested to provide the
aforementioned litigation assistance beyond the extent to which you would
be required to do so as a named party in such legal proceeding(s), then
ENTRUST shall reimburse you for authorized reasonable and documented travel
expenses including, but not limited to, transportation, lodging and meals
and for lost income up to a maximum of $1,000 per day incurred in
connection with such services. Although your rights to exercise currently
vested options will continue to exist during the Consulting Term, no
additional options will vest during that period.
16) IN CONSIDERATION OF THE PAYMENTS AND BENEFITS DETAILED ABOVE, YOU HEREBY
FULLY AND UNCONDITIONALLY RELEASE AND FOREVER DISCHARGE
ENTRUST (EXCEPT FOR THE PROMISES AND COMMITMENTS CONTAINED HEREIN
(INCLUDING WITHOUT LIMITATION THE INDEMNIFICATION OBLIGATIONS REFERRED TO
IN SECTION 9), FOR WHICH YOU RETAIN ALL COMMON LAW RIGHTS AND REMEDIES FOR
BREACH OF CONTRACT) TO THE EXTENT PERMITTED BY LAW, FROM ANY AND ALL
CLAIMS, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR SALARY, INCENTIVE
COMPENSATION, VACATION PAY, BENEFITS OR OTHER COMPENSATION AND PERQUISITES;
ANY AND ALL REAL OR PRETENDED CLAIMS, CAUSES OF ACTION, RIGHTS OR DEMANDS,
INCLUDING, WITHOUT LIMITATION, THOSE ARISING IN CONTRACT OR TORT, AND
SPECIFICALLY ANY CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF
1967 (INCLUDING, BUT NOT LIMITED TO, YOUR RIGHT TO MAKE A CLAIM IN YOUR OWN
RIGHT OR THROUGH A SUIT BROUGHT BY ANY THIRD PARTY ON YOUR BEHALF) 29
U.S.C. (S)621 ET SEQ., AND THE TEXAS EMPLOYMENT DISCRIMINATION LAW, TEXAS
-- ---
LABOR CODE (S)21.001 ET SEQ. OR ANY OTHER FEDERAL, STATE OR LOCAL LAW OR
-- ---
ORDINANCE; THOSE WHICH YOU EVER HAD OR NOW HAVE DIRECTLY OR INDIRECTLY
BASED UPON ANY FACT, MATTER, EVENT OR CAUSE, WHETHER KNOWN OR UNKNOWN,
ARISING OUT OF OR RELATING TO YOUR EMPLOYMENT BY ENTRUST AND YOUR
SEPARATION THEREFROM, OR YOUR RELATIONSHIP WITH ENTRUST OR THE TERMS OF ANY
WRITTEN OR ORAL EMPLOYMENT ARRANGEMENTS OR THE LIKE THAT YOU MAY HAVE
ENTERED INTO WITH ENTRUST. WHILE THIS AGREEMENT MAY NOT BE USED TO
INTERFERE WITH YOUR RIGHT TO FILE A CHARGE OR PARTICIPATE IN AN
INVESTIGATION OR PROCEEDING CONDUCTED BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION OR ANY OTHER APPROPRIATE AGENCY, YOU UNDERSTAND AND AGREE THAT
ENTRUST MAY USE THIS AGREEMENT AS A DEFENSE TO ANY SUCH CHARGE YOU FILE,
INVESTIGATION OR PROCEEDING IN WHICH YOU PARTICIPATE, OR REMEDY WHICH YOU
SEEK.
17) IN CONSIDERATION OF THE PAYMENTS AND BENEFITS DETAILED ABOVE, ENTRUST
HEREBY FULLY AND UNCONDITIONALLY RELEASES AND FOREVER DISCHARGES YOU
(EXCEPT FOR THE PROMISES AND COMMITMENTS CONTAINED HEREIN, FOR WHICH
ENTRUST WILL RETAIN ALL COMMON LAW RIGHTS AND REMEDIES FOR BREACH OF
CONTRACT) TO THE EXTENT PERMITTED BY LAW, FROM ANY AND ALL CLAIMS, CAUSES
OF ACTION, RIGHTS OR DEMANDS, INCLUDING, WITHOUT LIMITATION, THOSE ARISING
IN CONTRACT OR TORT AND THOSE WHICH IT EVER HAD OR NOW HAS DIRECTLY OR
INDIRECTLY BASED UPON ANY FACT, MATTER, EVENT OR CAUSE, WHETHER KNOWN OR
UNKNOWN, ARISING OUT OF OR RELATING TO YOUR EMPLOYMENT BY ENTRUST; PROVIDED
HOWEVER THAT THE FOREGOING RELEASE DOES NOT ENCOMPASS, AND ENTRUST
EXPRESSLY RETAINS, ANY RIGHTS IT MAY HAVE WITH RESPECT TO ANY ACTION
UNDERTAKEN IN BAD FAITH, ANY VIOLATION OF THE LAWS, REGULATIONS, OR
CORPORATE DOCUMENTS APPLICABLE TO ENTRUST, AND ANY INTENTIONAL BREACH OR
RECKLESS DISREGARD FOR COMPANY POLICIES AND PROCEDURES OR REASONABLE
DIRECTIONS OF THE ENTRUST BOARD OF DIRECTORS, BY YOU AND OF WHICH ENTRUST
HAS NO KNOWLEDGE, TO THE EXTENT THAT AND SUCH VIOLATION, BREACH OR RECKLESS
DISREGARD RESULTS IN AN ACTUAL, DEMONSTRABLE LOSS TO THE COMPANY. FOR
PURPOSES OF THIS PARAGRAPH, FACTS WITHIN THE KNOWLEDGE OF ENTRUST SHALL BE
THOSE KNOWN TO ANY OF (i) THE ENTRUST BOARD OF DIRECTORS OR (ii) THE CO-
CEOS OF ENTRUST AS OF THE DATE ENTRUST EXECUTES THIS AGREEMENT.
18) YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SEPARATION AGREEMENT / RELEASE AND
THAT YOU UNDERSTAND ALL OF ITS TERMS AND EXECUTE IT VOLUNTARILY WITH FULL
KNOWLEDGE OF ITS SIGNIFICANCE AND THE CONSEQUENCES THEREOF. FURTHER, YOU
ACKNOWLEDGE THAT YOU HAVE HAD AN ADEQUATE OPPORTUNITY TO REVIEW AND
CONSIDER THE TERMS OF THIS SEPARATION AGREEMENT AND RELEASE, INCLUDING, AT
YOUR DISCRETION, THE
RIGHT TO DISCUSS THIS DOCUMENT WITH LEGAL COUNSEL OF YOUR CHOICE. FINALLY,
YOU HEREBY ACKNOWLEDGE THAT YOU INTEND TO GRANT TO COMPANY A FULL AND FINAL
RELEASE AS SET FORTH HEREIN.
19) Except as expressly provided to the contrary or as precluded by operation
of law, this Agreement shall be binding upon, and inure to the benefit of,
each of us and our successors, assigns, heirs, administrators,
representatives, and executors, and its enforceability shall not be
challenged by such persons.
20) The terms and conditions of this Agreement will be open for your review and
consideration through the close of business on March 5, 2001. If you have
not returned an executed copy of this Agreement by facsimile or an original
to Mr. Kendry, at the address referenced in paragraph 5 of this Agreement,
by the close of business on March 5, 2001, then the terms and conditions
set forth in this Agreement shall be withdrawn as of that time and date.
21) This Agreement constitutes the entire understanding of the parties with
respect to the subject matter hereof and there are no promises,
understandings or representations other than those set forth herein. This
Agreement may be modified only with a written instrument duly executed by
each of the parties.
22) This Agreement shall in all respects be interpreted, enforced and governed
under the laws of the State of Texas.
23) If any provision of this Agreement shall be determined to be invalid,
illegal, or unenforceable, in whole or in part, neither the validity of the
remaining parts of such provision nor the validity of any other provision
of this Agreement shall in any way be affected thereby. In lieu of such
invalid, illegal, or unenforceable provision, this Agreement shall be
automatically reformed and construed to include provisions as similar in
terms to such invalid, illegal, or unenforceable provision as may be
possible so as to be valid, legal, and enforceable.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Agreement as of the day and year as set forth below.
Entrust Technologies Inc. Xxxx Xxxx
By: /s/ Xxxxx X. Kendry /s/ Xxxx Xxxx
------------------------------- -----------------------------------
Title: VP & Secretary Date: 2/24/01
---------------------------- ------------------------------
Date: 24 Feb 01
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APPENDIX A
1. General. Entrust shall, to the fullest extent permitted by the
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Maryland General Corporation Law, indemnify Xxxx X. Xxxx ("Xxxx") to the extent
he was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he was a director or
officer of the Corporation, or was serving at the request of the Corporation, as
a director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom unless it is established that (i) the act or
omission of Xxxx was material to the matter giving rise to the proceeding and
(a) was committed in bad faith or (b) was the result of active and deliberate
dishonesty, (ii) Xxxx actually received an improper personal benefit and money,
property or services or (iii) in the case of any criminal proceeding, Xxxx had
reasonable cause to believe that the act or omission was unlawful. However, if
the proceeding was one by or in the right of the Corporation, indemnification
shall not be made in respect of any proceeding in which Xxxx shall have been
judged to be liable to the Corporation. The termination of any proceeding by
judgment, order or settlement shall not create a presumption that Xxxx did not
meet the requisite standard of conduct set forth in this section. The
termination of any proceeding by conviction or a plea of nolo contendere or its
---- ----------
equivalent or an entry of an order of probation prior to judgment, shall create
a rebuttable presumption that Xxxx did not meet such standard of conduct.
Notwithstanding anything to the contrary in this Appendix A, except as set forth
in Section 7 below, Entrust shall not indemnify Xxxx in connection with a
proceeding (or part thereof) initiated by Xxxx unless the initiation thereof was
approved by the Board of Directors of Entrust. Notwithstanding anything to the
contrary in this Appendix A, Entrust shall not indemnify Xxxx to the extent he
is reimbursed from the proceeds of insurance, and in the event Entrust makes any
indemnification payments to Xxxx and he is subsequently reimbursed from the
proceeds of insurance, Xxxx shall promptly refund such indemnification payments
to Entrust to the extent of such insurance reimbursement.
2. Proceedings Charging Improper Personal Benefit. Xxxx shall not be
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indemnified under Section 1 above in respect of any proceeding charging improper
personal benefit to him, whether or not involving action in his official
capacity, in which he was adjudged to be liable on the basis that the personal
benefit was improperly received.
3. Indemnification for Expenses of Successful Party. Notwithstanding the
------------------------------------------------
other provisions of this Appendix A, to the extent that Xxxx has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Section 1, or in defense of any claim, issue or matter
therein, or on appeal from any such action, suit or proceeding, he shall be
indemnified against all expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
4. Notification and Defense of Claim. As a condition precedent to his
---------------------------------
right to be indemnified, Xxxx must notify Entrust in writing as soon as
practicable of any action, suit, proceeding or investigation involving him for
which indemnity will or could be sought. With respect to any action, suit,
proceeding or investigation of which Entrust is so notified, it will be entitled
to participate therein at its own expense and/or to assume the defense thereof
at its own expense, with legal counsel reasonably acceptable to Xxxx. After
notice from Entrust to Xxxx of its election to assume such defense, Entrust
shall not be liable to Xxxx for any legal or other expenses subsequently
incurred by Xxxx in connection with such claim, other than as provided below in
this Section 4. Xxxx shall have the right to employ his own counsel in
connection with such claim, but the fees and expenses of such counsel incurred
after notice from Entrust of its assumption of the defense thereof shall be at
the expense of Xxxx unless (i) the employment of counsel by Xxxx has been
authorized by Entrust, (ii) counsel to Xxxx shall have reasonably concluded that
there may be a conflict of interest or position on any significant issue between
Entrust and Xxxx in the conduct of the defense of such action or (iii) Entrust
shall not in fact have employed counsel to assume the defense of such action, in
each of which cases the fees and expenses of counsel for Xxxx shall be at the
expense of Entrust, except as otherwise expressly provided by this Appendix A.
With respect to the class action securities lawsuit referred to as In re Entrust
Securities Litigation , No. 2-00-CV-119-TJW (E.D. Tex.), (i) counsel to the
Company has reasonably concluded as of the execution of this Agreement that
there is no conflict of interest or position on any significant issue between
Entrust and Xxxx in the conduct of the defense of such action, and (ii) Entrust
has and will continue, subject to the standards set forth in Paragraph 1 of this
Appendix A, to employ counsel to defend both the Company and Xxxx in such
action, the fees and expenses of which counsel shall be at the expense of
Entrust. Entrust shall not be entitled, without the consent of Xxxx, to assume
the defense of any claim brought by or in the right of Entrust or as to which
counsel for Xxxx shall have reasonably made the conclusion provided for in
clause (ii) above.
5. Advance of Expenses. Subject to the provisions of Section 6 below, in
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the event that Entrust does not assume the defense pursuant to Section 4 of this
Appendix A of any action, suit, proceeding or investigation of which Entrust
receives notice under this Appendix A, any reasonable expenses (including
attorneys' fees) incurred by Xxxx in defending a civil or criminal action, suit,
proceeding or investigation or any appeal therefrom shall be paid or reimbursed
by Entrust in advance of the final disposition of such matter; provided,
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however, that the payment or reimbursement of such reasonable expenses incurred
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by Xxxx in advance of the final disposition of such matter shall be made only
upon receipt of a written affirmation by Xxxx of his good faith belief that the
standard of conduct necessary for indemnification by Entrust as authorized in
Section 1 above has been met and a written undertaking by or on behalf of Xxxx
to repay all amounts so advanced in the event that it shall ultimately be
determined that the standard of conduct has not been met. Such undertaking
shall be accepted without reference to the financial ability of Xxxx to make
such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or
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advancement of expenses pursuant to Sections 1, 3 or 5 of this Appendix A, Xxxx
shall submit to Entrust a written request, including in such request such
documentation and information as is reasonably available to Xxxx and is
reasonably necessary to determine whether and to what extent Xxxx is entitled to
indemnification or advancement of expenses. Any such indemnification or
advancement of expenses shall not be made by Entrust unless authorized for a
specific proceeding after a determination has been made that indemnification of
Xxxx is permissible in the circumstances because Xxxx has met the standard of
conduct set forth in Section 1 above. With respect to the class action
securities lawsuit referred to as In re Entrust Securities Litigation , No. 2-
00-CV-119-TJW (E.D. Tex.), such determination has been made and, subject to the
standard set forth in Paragraph 1 of this Appendix A, will not be revoked,
modified or amended. Such determination shall be made in each instance by (i) a
majority vote of a quorum consisting of the directors of Entrust who are not at
that time parties to the action, suit or proceeding in question ("disinterested
directors"), or, if such quorum cannot be obtained, then by a majority vote of a
committee of two or more disinterested directors designated by majority vote of
the full board of directors in which directors who are parties may participate,
(ii) a majority vote of a quorum of the outstanding shares of stock of all
classes entitled to vote for directors, voting as a single class, which quorum
shall consist of stockholders who are not at that time parties to the action,
suit or proceeding in question, (iii) special legal counsel selected by the
Board of Directors or a Committee of the Board by vote as set forth in clause
(i) of this Section 6, or if the requisite quorum of the full Board cannot be
obtained therefore, and the committee cannot be established, by a majority vote
of the full Board in which directors who are parties may participate, or (iv) a
court of competent jurisdiction. Authorization of indemnification and
determination as to reasonableness of expenses shall be made in the same manner
as the determination that indemnification is permissible. However, if the
determination that indemnification is permissible is made by special legal
counsel, authorization of indemnification and determination as to reasonableness
of expenses shall be made in the manner specified in clause (iii) of the third
sentence of Section 6 for selection of such counsel.
7. Remedies. The right to indemnification or advances as granted by this
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Appendix A shall be enforceable by Xxxx in any court of competent jurisdiction
if Entrust denies such request, in whole or in part, pursuant to Section 6.
Unless otherwise required by law, the burden of proving that that Xxxx is not
entitled to indemnification or advancement of expenses under this Appendix shall
be on Entrust. The actual determination by Entrust pursuant to Section 6 that
Xxxx has not met the applicable standard of conduct shall not be a defense to
the action or create a presumption that Xxxx has not met the applicable standard
of conduct. Ryan's expenses (including attorneys' fees) incurred in connection
with successfully
establishing his right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by Entrust.
8. Subsequent Amendment. No amendment, termination or repeal of this
--------------------
Appendix A or of the relevant provisions of the Maryland General Corporation Law
or any other applicable laws shall affect or diminish in any way the rights of
Xxxx to indemnification under the provisions hereof with respect to any action,
suit, proceeding or investigation arising out of or relating to any actions,
transactions or facts occurring prior to the final adoption of such amendment,
termination or repeal.
9. Other Rights. The indemnification and advancement of expenses
------------
provided by this Appendix A shall not be deemed exclusive of any other rights to
which Xxxx xxx be entitled under any law (common or statutory), the Company's
charter or bylaws, any agreement or vote of stockholders or otherwise, both as
to action in his official capacity and as to action in any other capacity while
holding office for Entrust, and shall inure to the benefit of the estate, heirs,
executors and administrators of Xxxx.
10. Partial Indemnification. If Xxxx is entitled under any provision of
-----------------------
this Appendix A to indemnification by Entrust for some or a portion of the
expenses (including attorneys' fees), judgments, fines or amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, Entrust shall
nevertheless indemnify Xxxx for the portion of such expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement to which he is
entitled.
11. Merger or Consolidation. If Entrust is merged into or consolidated
-----------------------
with another corporation and Entrust is not the surviving corporation, the
surviving corporation shall assume the obligations of Entrust under this
Appendix A with respect to any action, suit, proceeding or investigation arising
out of or relating to any actions, transactions or facts occurring prior to the
date of such merger or consolidation.
12. Savings Clause. If this Appendix A or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then Entrust
shall nevertheless indemnify Xxxx as to any expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with any
action, suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of Entrust, to the
fullest extent permitted by any applicable portion of this Appendix A that shall
not have been invalidated and to the fullest extent permitted by applicable law.
13. Definitions. Terms used herein and defined in Section 2-418 of the
-----------
Maryland General Corporation Law shall have the respective meanings assigned to
such terms in such Section 2-418.
14. Subsequent Legislation. If the Maryland General Corporation Law is
----------------------
amended after adoption of this Appendix A to expand further the indemnification
permitted to Xxxx, then Entrust shall indemnify Xxxx to the fullest extent
permitted by the Maryland General Corporation Law, as so amended.
APPENDIX B
VeriSign
Baltimore
Microsoft (security division)
Equifax
Entegrity
RSA Security
Cylink
Arcot
Digital Signature Trust
CertCo
ValiCert
Spyrus
Diversinet
ID Certify
iD2
Securant
Netegrity
Certicom
Secude
TriStrata
IBM/Tivoli (the Secure Way product line)
Network Associates (PGP Product Line)
iPlanet (Sun/Netscape Alliance - Certificate Management System)
Oblix
Access 360
Computer Associates
Private PKI and authorization business entities that compete with Entrust
Technologies except for business entities that use Entrust as their primary PKI
and/or authorization software
