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:


 


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(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;


 


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2.             With the exception of the payment made
pursuant to Section 1(ii), which amount shall be paid without withholding
and shall be reported on a Form 1099, the Company shall undertake to make
deductions, withholdings and tax reports with respect to payments and benefits
under this Release to the extent that it reasonably and in good faith
determines that it is required to make such deductions, withholdings and tax
reports. Payments under this Release shall be in amounts net of any such
deductions or withholdings. Nothing in this Release shall be construed to
require the Company to make any payments to compensate the Executive for any
adverse tax effect associated with any payments or benefits or for any
deduction or withholding from any payment or benefit.


 


3.             Executive agrees that, upon payment of the
amounts set forth in Sections 1(i), (ii) and (vii), the Company shall have
paid him any and all salary, other wages and vacation pay he is owed, if any;
he acknowledges that no such further payments or amounts are owed or will be
owed with the exception of any properly authorized business expenses incurred
in reasonable amounts and supported by documentary evidence that have not been
reimbursed to Executive as the result of any reimbursement requests submitted
to the Company on or before December 15, 2008.


 


4.             Except
for the provisions of Section 1 of this Release and in consideration for
the payments and benefits described in Section 1, to which the Executive
acknowledges the Executive would not otherwise be entitled, the Executive for
himself and his heirs, agents, assigns, executors, successors and each of them,
voluntarily releases and forever discharges the Company, its affiliated and
released entities (including, without limitation, the Company’s parent and
subsidiary entities), its and their respective predecessors, successors and
assigns, its and their respective employee benefit plans and fiduciaries of
such plans, and the current and former officers, directors, shareholders,
employees, attorneys, accountants and agents of each of the foregoing in their
official and personal capacities (collectively referred to as the “Releasees”)  generally
from all claims, demands, debts, damage and liabilities of every name and nature,
known or unknown (“Claims”)  that,
as of the date when the Executive signs this Release, the Executive ever had,
now claims to have or ever claimed to have had against any or all of the
Releasees.


 


This Release includes,
without limitation, all Claims: relating to the Executive’s employment with the
Company and the termination of the Executive’s employment; of wrongful
discharge; of breach of contract; of retaliation or discrimination under
federal, state or local law, including, but not limited to, Claims of
discrimination or retaliation under Title VII of the Civil Rights Act of 1964,
Claims of disability discrimination or retaliation under the Americans with
Disabilities Act, Claims of discrimination or retaliation under the California
Fair Employment and Housing Act; Claims under the Older Worker Benefit
Protection Act; Claims under other federal or state statutes; of defamation or
other torts; of violation of public policy; for wages, bonuses, incentive
compensation, stock, stock options, vacation pay or any other compensation or
benefit; and for damages or other remedies of any sort, including, without
limitation, compensatory damages, punitive damages, injunctive relief and
attorney’s fees. Notwithstanding the foregoing, the Executive does not release (a) any
rights that cannot be waived, including, without limitation, his right to
indemnity pursuant to California Labor Code Section 2802; (b) his
right to future indemnity pursuant to the Company’s by-laws and Delaware
corporation law; and (c) his rights arising solely as a stockholder of the
Company.


 


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The
Executive acknowledges that he is familiar with Section 1542 of the
California Civil Code, which reads as follows:


 


California
Civil Code Section 1542


 


“A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.”


 


The
Executive agrees that he is releasing unknown claims and waiving all rights
that he may have under Section 1542 of the Civil Code of California or
under any statute or common law principle of similar effect.


 


5.             The
Company voluntarily releases and discharges the Executive and his heirs,
successors, administrators, representatives and assigns from all claims that it
may have against the Executive as the result of his employment or the
discontinuance of his employment and that are based upon facts known, or which
in the exercise of reasonable diligence should have been known, to the Company’s
Board of Directors. Notwithstanding the foregoing, nothing herein shall release
or discharge any Claim by the Company against the Executive, or the right of
the Company to bring any action, legal or otherwise, against the Executive as a
result of any failure by him to perform his obligations under this Agreement,
or as a result of any acts of intentional misconduct or recklessness.


 


The
Company acknowledges that it is familiar with Section 1542 of the
California Civil Code, which reads as follows:


 


California
Civil Code Section 1542


 


“A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially affected his or
her settlement with the debtor.”


 


The
Company agrees that it is releasing unknown claims and waiving all rights that
it may have under Section 1542 of the Civil Code of California or under
any statute or common law principle of similar effect.


 


6.             Executive
agrees that he will not make any written or oral communications that are
defamatory of the Company in any respect, including, but not limited to, the
Company’s business, technology, products, executives, officers, directors,
former executives, consultants or agents. The Company agrees that its directors
and officers will not make any written or oral communications that could
reasonably be considered to be defamatory of Executive in any respect,
including, but not limited to, the Executive’s work ethic, job performance, and
skill. The obligations of this Section 6 shall not in any way affect
Executive’s obligation or the obligations of the above-referenced persons to
testify truthfully in any legal proceeding.


 


7.             The Executive further acknowledges that
during his employment, he may have obtained confidential, proprietary and trade
secret information, including information relating to the Company’s products,
plans, designs and other valuable confidential information. The Executive


 


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agrees
not to use or disclose any such confidential information unless required by
subpoena or court order, and further agrees to first give the Company written
notice of such subpoena or court order with reasonable advance notice to permit
the Company to oppose such subpoena or court order if it chooses to do so.


 


8.             This
Release was either negotiated for Executive by a representative of his own
choosing or he, after having had a reasonable opportunity to obtain a
representative of his own choosing, elected to represent himself in such
negotiations. Both the Company and Executive are voluntarily agreeing to this
Release. It is agreed that the payments under this Release are not an admission
of any liability or obligation.


 


9.             Executive
expressly states that he has read this Release and understands all of its
terms, that the preceding paragraphs recite the sole consideration for this
Release, and that this Release constitutes the entire agreement with respect to
any matters referred to in it. This Release supersedes any and all other
agreements between Executive and the Company regarding Executive’s employment
and the terms of separation. This Release may only be amended in writing signed
by Executive and an officer of the Company, and it is executed voluntarily and
with full knowledge of its significance.


 


10.           Executive
has the opportunity to consider this Agreement for twenty-one days before
signing it. To accept this Agreement, Executive must return a signed original
of this Agreement so that it is received by the undersigned at or before the
expiration of this twenty-one day period. If Executive signs this Agreement
within less than twenty-one days of the date of its delivery to Executive,
Executive acknowledges by signing this Agreement that such decision was
entirely voluntary and that Executive had the opportunity to consider this
Agreement for the entire twenty-one day period.


 


For
the period of seven days from the date when this Agreement becomes fully
executed, Executive has the right to revoke this Agreement by written notice to
the undersigned. For such a revocation to be effective, it must be delivered so
that it is received by the undersigned at or before the expiration of the
seven-day revocation period. This Agreement shall not become effective or
enforceable during the revocation period. This Agreement shall become effective
on the first business day following the expiration of the revocation period.


 


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11.           This Release will be interpreted
pursuant to the laws of the State of California, without regard to conflict of
law principles.


 


	
   

  	
   

  	
  Yves
  Audebert

  
	
   

  	
   

  	
   

  
	
  Dated:
  

  	
  12/17/2008

  	
   

  	
  /s/
  Yves Audebert

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Company

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:
  

  	
  12/17/2008

  	
   

  	
  By:

  	
  /s/
  JD Kerrest

  
	
   

  	
   

  	
   

  	
  Name:
  Jacques Kerrest

  
	
   

  	
   

  	
   

  	
  Title:
    CFO/COO

  



 


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