Exhibit 10.36
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of April 2,
2001 between Identix Incorporated, a Delaware corporation ("Identix"), and Xxxx
X. Xxxxxx ("Employee").
In consideration of the mutual promises, covenants and agreements set forth
in this Agreement, Identix and Employee agree as follows:
1. Duties.
-- ------
(a) During the term of this Agreement (as defined in Section 2.2),
Employee shall devote all of his business time, energy, and skill to the affairs
of Identix; provided, however, that Employee may undertake such specific
additional charitable and business activities, if any, as Identix may reasonably
approve (including, without limitation, activities for affiliates of Identix).
(b) Employee's initial position will be as Chief Financial Officer of
Identix, reporting directly to the Chief Executive Officer of Identix, or to
such other person or persons as may be identified by the Board of Directors of
Identix from time to time.
(c) The employee or employees responsible for the Treasury, Investor
Relations and Information Systems functions within Identix shall report directly
to you unless and until otherwise determined by the Chief Executive Officer of
Identix.
2. Term of Employment.
------------------
2.1 Definitions. For purposes of this Agreement the following terms
-----------
shall have the following meanings:
(a) "Start Date" means April 2, 2001.
(b) "Termination For Cause" shall mean termination by Identix of
Employee's employment by Identix (i) by reason of Employee's commission of
a felony or other conduct involving fraud or moral turpitude, (ii) by
reason of Employee's fraud upon, or deliberate injury or attempted injury
to Identix, (iii) by reason of Employee's failure to substantially perform
for Identix the normal material duties related to his job position (other
than failure resulting from incapacity due to disability or death) which
failure continues for sixty (60) days following the Employee's receipt of
written notice of such failure to perform, specifying the nature of the
failure and the means by which it can be remedied, (iv) by reason of
Employee's willfully engaging in gross misconduct which is materially and
demonstrably injurious to Identix, or (v) by reason of Employee's willful
breach of this Agreement in any material respect.
(c) "Termination Other Than For Cause" shall mean termination by
Identix of
Employee's employment by Identix (other than in a Termination For Cause).
Included within the definition of "Termination Other Than For Cause" shall
be (i) Employee's death during the term of this Agreement, (ii) termination
of Employee's employment by Identix based on Employee's failure to perform
his duties under this Agreement on account of illness or physical or mental
incapacity for a period of more than three (3) consecutive months or (iii)
any other involuntary termination that does not constitute a Termination
For Cause.
(d) "Voluntary Termination" shall mean termination by Employee of
Employee's employment by Identix, excluding termination by reason of
Employee's death or disability as described in Section 2.1(c).
(e) "Resignation for Good Reason" shall mean a voluntary resignation
of employment by Employee as a result of a material diminution in
responsibility or a material decrease in base salary unless the base
salaries of all other executive officers of the Company are proportionately
reduced, provided that Employee notifies Identix on or prior to any such
resignation and Identix fails to cure such event giving good reason for
such resignation within 30 days thereafter.
2.2 Basic Term. The term of employment of Employee by Identix shall
----------
commence on the Start Date and shall continue until that date which is two (2)
years after the Start Date, unless extended by mutual written agreement of
Employee and Identix or earlier terminated as provided in this Agreement.
2.3 Termination For Cause. Termination For Cause may be effected by
---------------------
Identix at any time during the term of this Agreement and shall be effective
upon by written notification to Employee. Upon Termination For Cause, Employee
shall be immediately paid all accrued salary, and all accrued vacation pay, all
to the effective date of termination, but Employee shall not be paid any other
compensation or reimbursement of any kind, including, without limitation,
severance compensation or bonus.
2.4 Termination Other Than For Cause or Resignation for Good Reason.
---------------------------------------------------------------
Notwithstanding anything else in this Agreement, Identix may effect a
Termination Other Than For Cause at any time after giving at least 30 days'
notice to Employee of such termination or pay in lieu of such notice. Upon the
effective date of any Termination Other Than For Cause or Resignation for Good
Reason, (a) Employee shall immediately be paid all accrued salary, and all
accrued vacation pay, all to the effective date of termination, (b) as severance
compensation, Employee shall continue to be paid his then current base salary
for the number of months indicated on Exhibit A (the "Severance Period"), (c)
Employee shall be paid all bonuses accrued through the date of termination, (d)
during the Severance Period, the Company shall make COBRA payments to continue
Employee's medical and dental benefits (or pay Employee an amount equivalent to
such COBRA payments) and shall make payments to continue Employee's term life
insurance (or pay Employee an amount equivalent to the premiums in effect prior
to termination), and (e) the options to purchase Common Stock granted to
Employee on the Start Date, and in connection with, this Agreement shall fully
vest immediately in accordance with the
2
terms of the stock option agreement attached as Exhibit C, but Employee shall
not be paid any other compensation or reimbursement of any kind. If any
Termination Other Than For Cause is the result of the death of Employee, all
payments payable under this Section 2.4 shall be paid to Employee's heirs or
legal representative.
2.5 Voluntary Termination. In the event of a Voluntary Termination,
---------------------
Identix shall immediately pay to Employee all accrued salary, and all accrued
vacation pay, all to the effective date of termination, but no other
compensation or reimbursement of any kind, including, without limitation,
severance compensation or bonus.
3. Salary and Benefits.
-------------------
3.1 Base Salary. As payment for the services to be rendered to Identix by
-----------
Employee and subject to the terms and conditions of Section 2, Identix agrees to
pay to Employee a "base salary" at the rate per month indicated on Exhibit A,
subject to deductions, payable bi-weekly in the same manner as other Identix
employees receive their base compensation.
3.2 Bonus. Employee shall be eligible to receive an incentive based
-----
bonus as indicated on Exhibit A.
3.3 Reimbursement of Certain Costs, Fees and Expenses. Identix will
-------------------------------------------------
reimburse Employee for certain costs, fees and expenses as indicated on Exhibit
A.
3.4 Housing Loan and Subsidy. Identix will make available to
------------------------
Employee a housing loan and subsidy as indicated on Exhibit A.
3.5 Fringe Benefits and Vacation. Employee shall be eligible to
----------------------------
participate in such of Identix' benefit plans as are now generally available or
later made generally available to employees of Identix. Such benefits shall at
a minimum include medical, dental and term life insurance. Employee will be
entitled to three weeks paid vacation per annum. Unused vacation may be
accrued by Employee up to a maximum of six weeks, when it will cease accruing
until the Employee reduces the accrued, unused amount through use of vacation
time.
4. Stock Options. In further consideration for Employee agreeing to perform
-------------
services for the Company hereunder, contemporaneously with the execution of this
Agreement, Employee and Identix shall enter into a stock option agreement
substantially in the form attached hereto as Exhibit C, covering the number of
shares of Identix common stock indicated on Exhibit A.
5. Annual Performance Review. The Company shall perform an annual review of
-------------------------
Employee's performance and, in the discretion of the Identix Board of Directors,
make appropriate increases in Employee's base salary and determine whether
additional stock option grants should be recommended to the Board of Directors
of Identix. The first such annual performance review shall be conducted on or
about April 2002.
3
6. Miscellaneous.
-------------
6.1 Waiver. The waiver of any term or condition of this Agreement by
------
any party shall not be construed as a waiver of a subsequent breach or failure
of the same term or condition, or a waiver of any other term or condition of
this Agreement.
6.2 Notices. All notices, requests, demands, and other
-------
communications made in connection with this Agreement shall be in writing and
shall be deemed to have been duly given on the date of delivery if delivered by
hand delivery or 12 hours after facsimile transmission to the persons identified
below or five days after mailing if mailed by certified or registered mail
postage prepaid return receipt requested addressed as follows:
If to Identix:
000 X. Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chairman and CEO
Facsimile: 000-000-0000
Confirmation No.: 000-000-0000
If to Employee: to the address indicated on Exhibit A
Either party may change its address for notices by notice duly given pursuant to
this Section 6.2.
6.3 Headings. The headings contained in this Agreement are intended
--------
for convenience and shall not be used to interpret the meaning of this Agreement
or to determine the rights of the parties.
6.4 Governing Law; Consent to Jurisdiction and Venue. This Agreement
------------------------------------------------
shall be governed by and construed in accordance with the laws of the State of
California applicable to contracts entered into and wholly to be performed
within the State of California by California residents. Employee hereby submits
to the jurisdiction and venue of the Superior Court of the State of California
for the County of Santa Xxxxx or the United States District Court for the
Northern District of California for any legal action arising from or connected
with this Agreement. Employee agrees that service upon Employee in any such
action may be made by first class mail, certified or registered, in the manner
provided for delivery of notices in Section 6.2.
6.5 Successor and Assigns. 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 this Agreement shall not be
assignable by Identix (except in connection with the merger or consolidation of
Identix with or into another entity or the sale by Identix of all or
substantially all of its assets) or by Employee.
4
6.6 Counterparts. This Agreement may be signed in counterparts with
------------
the same effect as if the signatures of each party were upon a single
instrument. All counterparts shall be deemed an original of this Agreement.
6.7 Withholdings. All sums payable to Employee hereunder shall be
------------
reduced by all federal, state, local and other withholding and similar taxes and
payments required by applicable law.
6.8 Severability. If any provision of this Agreement is held to be
------------
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent possible.
6.9 Entire Agreement; Modifications. Except as otherwise provided
-------------------------------
herein, this Agreement represents the entire understanding between the parties
with respect to the subject matter hereof, and this Agreement supersedes any and
all prior understandings, agreements, plans and negotiations, written or oral,
with respect to the subject matter hereof. All modifications to the Agreement
must be in writing and signed by the party against whom enforcement of such
modification is sought, provided that no modification shall be enforceable
against Identix unless signed by the Chief Executive Officer or Chief Operating
Officer of Identix.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
IDENTIX INCORPORATED EMPLOYEE
By /s/ Xxxxxx XxXxxxxx By /s/ Xxxx X Xxxxxx
------------------------------ ------------------------
Name: Xxxxxx XxXxxxxx Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer Title: Chief Financial
Officer
5
EXHIBIT A
1. Name and address of Employee:
-- ----------------------------
Xxxx X. Xxxxxx
0 Xxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
2. Base Salary:
-- -----------
$10,576.93 per pay-period (subject to customary taxes and withholdings)
payable on a bi-weekly basis, which is equivalent to $275,000.00 per year,
effective the Start Date.
3. Bonus:
-- -----
Employee will be eligible to receive an annual incentive-based bonus
compensation package equalling $137,500 (fifty percent (50%) of annual base
salary) based upon Employee meeting or exceeding defined criteria as
follows:
Seventy percent (70%) of bonus, payable on a quarterly basis, based on
Identix successfully achieving 100% of both its consolidated revenue and
consolidated net income numbers on a quarterly and year to date basis.
(Any unearned bonus for any quarter in which Identix does not achieve on
a quarterly and year to date basis 100% of both of its consolidated
revenue and consolidated net income numbers can be recouped in succeeding
quarters, but only if Identix makes up 100% of its shortfall (both top
and bottom line) on a YTD basis.)
Thirty percent (30%) of bonus, payable on a quarterly basis, based on
meeting or exceeding certain MBOs, which MBOs shall be identified in
writing and signed by Employee and the Chief Executive Officer of Identix
within the first 30 days of the Start Date.
4. Stock Options:
-------------
Employee will be granted a stock option to purchase 250,000 shares of
Identix common stock, par value $.01 per share, ("Common Stock") under the
Identix Incorproated New Employee Stock Option Plan ("the Plan"). The grant
is subject to approval by the Board of Directors ("the Board"). The exercise
price of the options will be the closing sales price of the Common Stock on
the American Stock Exchange on the Start Date. These options will be non-
qualified stock options and will vest at the rate of 1/48th of the total
number of shares on a monthly basis and are subject to other terms and
conditions set forth in the Plan.
6
5. Reimbursement of Certain Costs, Fees and Expenses:
--------------------------------------------------
Identix will reimburse Employee for actual costs of moving Employee's
furniture, household goods, two automobiles, and personal effects from
the Mission Viejo, CA area to the San Francisco Bay Area; provided,
however, Employee must submit a minimum of two bids from moving
companies; and provided, further, that the bids must be submitted to
Identix for approval prior to signing a moving contract.
Identix will reimburse Employee for Employee's real estate brokerage fees
on the sale of Employee's existing home in Mission Viejo, CA to a maximum
of $36,000 (six percent of $600,000, which is the estimated sale price of
Employee's existing home) and one percent (1%) for other closing costs.
Identix will reimburse Employee for his reasonable costs related to up to
two (2) house hunting trips, lasting a total of no more than eight (8)
days in the aggregate, to the San Francisco Bay Area for Employee and his
spouse and children. Identix will also reimburse Employee for his normal
and customary closing costs (up to 2% of purchase price) associated with
the acquisition of a primary residence in the San Francisco Bay Area -
including inspection and other fees, but not including points for the
related real estate loan. Documentation evidencing all fees and costs
must be submitted to Identix along with any request for reimbursement.
Identix will pay for one one-way coach airfare for each of Employee's
immediate family members to relocate to the San Francisco Bay Area.
Identix will provide for a furnished "executive" apartment for up to six
(6) months or until Employee locates regular housing of Employee's own.
6. Housing Loan and Subsidy:
---------------------------
Identix will provide a zero interest rate five year loan which shall be
secured by a second mortgage on Employee's home in the San Francisco Bay
Area. The loan will be evidenced by a promissory note mutually
satisfactory to Identix and Employee. The loan amount shall be equal to
twenty percent of the purchase price on Employee's new home; provided,
however, that the amount of the loan shall not be greater than
$300,000.00. The outstanding loan amount shall be due and payable in full
upon the earlier to occur of the five year term of the note or (1) that
date which is 15 days after the effective date of Employee's separation
of employment from Identix, if such separation arises out of a
Termination for Cause or a Voluntary Termination, or (2) the last day of
the Severance Period, if Employee's separation of employment from Identix
arises out of a Termination Other Than for Cause or Resignation for Good
Reason.
During the term of Employee's employment, Identix shall pay Employee a
monthly housing subsidy related to Employee's home in the San Francisco
Bay Area equal to the lesser of (a) the monthly housing subsidy amount
specified in column 4 of Exhibit
7
B or (b) a monthly housing subsidy amount equal to (i) Employee's actual
monthly mortage principal and interest times (ii) the percentage
specified in column 5 of Exhibit B. The monthly housing subsidy will be
in effect until the earlier of the date Employee pays his mortgage in
full or that date which is five years after the inception of Employee's
mortgage, and will adjust downward for each year that elapses from the
inception of the mortgage, as provided on Exhibit B.
7. Severance Period: 12 months from the effective date of termination.
----------------
EXHIBIT B
Mortgage Subsidy - 5 Year Program
---------------------------------
Column 1 2 3 4 5
------------------------------------------------------------------------
Year Employee's Employee's Company's Company's
Estimated Monthly Monthly Subsidy
Monthly P & I Subsidy Percentage
Mortgage Payment Amount Rate
P & I of Actual
Mortgage
P & I
------------------------------------------------------------------------
1 6,986 3,881 3,105 44.40%
2 6,986 4,427 2,559 36.60%
3 6,986 5,013 1,973 28.20%
4 6,986 5,637 1,349 19.30%
5 6,986 6,295 690 9.90%
6 6,986 6,986 - 0.00%
------------------------------------------------------------------------
EXHIBIT C
Stock Option Agreement
8
