Exhibit 10.1
SEVERANCE AGREEMENT AND
RELEASE
Re: Yves Audebert and ActivIdentity
Corporation
I, Yves Audebert (
“Executive” ) acknowledge that my employment
with Activldentity Corporation and its affiliates and subsidiaries
(collectively, the “Company” ) terminated
effective on November 14, 2008 (the “Separation
Date” ) . This Severance Agreement and Release
(the “Release” ) is in
consideration of the commitments made by the parties released
hereby, all of which commitments are set forth in this
document.
Subject to the effectiveness of this Release
pursuant to Section 10, the Company agrees for the benefit of
Executive:
1.
To pay a total of $142,500, equal to six months base salary, which
will be paid by wire transfer within three days following the
effectiveness of the Release (the “Severance
Pay” ) , as described in Section l0
below.
The Company will also:
(i)
Pay to the Executive by wire transfer within three days following
the effectiveness of the Release an amount equal to $53,437.50 in
satisfaction of the Executive’s incentive bonus compensation
for the calendar year 2008;
(ii)
Pay to the Executive by wire transfer within three days following
the effectiveness of the Release an amount equal to $12,056.88 in
satisfaction of waiting time penalties incurred for late payment of
the Executive’s final wages and accrued vacation;
(iii)
if Executive elects COBRA continuation coverage and provided that
Executive and Executive’s dependents remain eligible for
COBRA continuation coverage, the Company shall continue to pay for
medical and dental insurance premiums for coverage of Executive and
Executive’s eligible dependents to the same extent as if
Executive remained employed until the earlier of (x) eighteen (18)
months from the Separation Date and (y) the date that
Executive first becomes eligible to receive such benefits through a
new employer, and the Executive is required to notify ActivIdentity
when he becomes eligible to receive such benefits through a new
employer; provided, however, that if, during the period of
continuation coverage, any plan pursuant to which such benefits are
provided ceases to be exempt from the application of
Section 409A of the Internal Revenue Code of 1986, as amended
( “Section 409A” ) under Treasury
Regulation Section 1.409A-1(a)(5), then an amount equal to
each such remaining premium shall thereafter be paid to the
Executive as currently taxable compensation in substantially equal
monthly installments over the remainder of the continuation
coverage period; or if such healthcare benefits are to be provided
in whole or in part through a self-funded plan, the benefits of
which are not fully-insured by a third-party insurer:
1
(A) to the greatest extent
applicable, such healthcare benefits shall be construed to satisfy
the exemption from Section 409A pursuant to Treasury
Regulation Section 1.409A-1(b)(9)(v)(B), and
(B) to the extent such healthcare
benefits do not satisfy such exemption and/or extend beyond the
COBRA continuation period, determine, as of the date of the
Executive’s Separation from Service, the amount (the
“Section 409A Healthcare Coverage
Payment” ) equal to (x) the aggregate of the
subsidized premiums which would otherwise be paid or reimbursed by
the Company in respect of such benefits, minus (y) the value
of any benefits provided, or to be provided, to the Executive under
subsection (A) above, and pay a lump sum cash payment equal to
the Section 409A Healthcare Coverage Payment to the Executive
in lieu of such subsidized premiums. In particular, all taxable
expense reimbursement payments and in kind benefits provided to the
Executive shall be structured in compliance with Code
Section 409A and reimbursements shall be paid by the Company
to the Executive by no later than the end of the calendar year
following the calendar year in which the Executive incurs such
expenses, and the Executive shall take all actions necessary to
claim all such reimbursements on a timely basis to permit the
Company to make all such reimbursement payments prior to the end of
said period.
(iv)
accelerate vesting on Executive’s outstanding unvested stock
options and outstanding unvested restricted stock units, which
represent the right to acquire a total of 326,042 and 36,731
additional shares of common stock, respectively;
(v)
extend the exercise period of Executive’s options granted
under the 2004 Equity Incentive Plan (the
“Plan” ), so that all such vested options
remain exercisable until the earlier of eighteen (18) months from
the Separation Date or the date of termination of such options
(e.g., 7 years from the grant date);
(vi)
within ten (10) days after the date hereof (with the specific
date to be determined by the Company in its sole discretion),
reimburse Executive for outstanding unpaid business expenses
incurred through the Separation Date, subject to documentation in
accordance with the Company’s customary policy; provided,
that with respect to any reimbursements or in-kind benefits
(including any continued healthcare benefits or any other fringe
benefits or reimbursements), such reimbursements or benefits shall
be provided in a manner that complies with Treasury Regulation
Section 1.409A-3(i)(1)(iv), including the following:
(i) in no event shall such benefits or reimbursements be
provided later than the last day of the Executive’s taxable
year following the taxable year in which the expense was incurred
or the obligation arose, (ii) the amount of expenses eligible
for reimbursement, or in-kind benefits provided, during the
Executive’s taxable year may not affect the expenses eligible
for reimbursement, or in-kind benefits provided, in any other
taxable year of the Executive, provided that any such expenses
shall only be reimbursed once, and (iii) the right to
reimbursements or in-kind benefits is not subject to liquidation or
exchange for another benefit; and
(vii)
pay Executive within one week following the effectiveness of the
Release an amount representing an additional forty eight (48) hours
of personal time for the time period that his accrual was capped
from 4/15/07 through 11/14/08 and an additional one hundred fifty
eight (158.27) hours of vacation time for the time period that the
Executive’s accrual was capped from 1/31/08 through 11/14/08,
which amount totals $28,261.06;
2
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