SEPARATION AND RELEASE AGREEMENT BETWEEN BOOKHAM, INC., AVANEX CORPORATION AND GIOVANNI BARBAROSSA
Exhibit 10.41
SEPARATION AND RELEASE AGREEMENT BETWEEN BOOKHAM, INC., AVANEX CORPORATION AND
XXXXXXXX XXXXXXXXXX
XXXXXXXX XXXXXXXXXX
This Separation and Release Agreement (this “Agreement”) is entered into as of this day
of , 2009, by and between Bookham Incorporated, a Delaware corporation (“Parent”),
Avanex Corporation, a Delaware corporation (the “Company) and Xxxxxxxx Xxxxxxxxxx (“Executive”).
Parent, Company and Executive hereby agree as follows:
1. The employment relationship between the Executive and the Company and its subsidiaries and
affiliates, as applicable, terminated on , 200___(the “Termination Date”).
2. In settlement of amounts owed under Section 4(a) of the Change in Control Agreement between
the Company and the Executive dated as of November 28, 2008 (the “Change in Control Agreement”),
the Executive shall receive:
(a) a lump sum cash payment equal to the sum of (i) one year of Executive’s annual base salary
as of the Termination Date (which shall not be less than $360,000) and (ii) a pro-rata portion of
Executive’s target annual incentive award (equal to at least 60% of his annual base salary)
determined by multiplying such target annual incentive award by a fraction, the numerator of which
is the number of days in the current fiscal year of the Company through the Termination Date, and
the denominator of which is 365; and
(b) the health coverage and benefits described in Section 4(a)(iv) of the Change in Control
Agreement; and
The cash payments described in this Section 2 shall be made no later than ten (10) days after the
expiration of the revocation period described in Section 8 of this Agreement.
3. In consideration of the payments and benefits provided hereunder, the sufficiency of which
the Executive hereby acknowledges, the Executive, on behalf of the Executive and the Executive’s
heirs, executors and assigns, hereby releases and forever discharges the Company and its members,
parents, affiliates, subsidiaries, divisions, any and all current and former directors, officers,
employees and agents, from all claims, charges, or demands, in law or in equity, whether known or
unknown, which may have existed or which may now exist from the beginning of time to the date of
this Agreement, including, without limitation, any claims the Executive may have arising from or
relating to the Executive’s employment or termination from employment with the Company, including a
release of any rights or claims the Executive may have under Title VII of the Civil Rights Act of
1964, as amended, and the Civil Rights Act of 1991 (which prohibit discrimination in employment
based upon race, color, sex, religion, and national origin); the Americans with Disabilities Act of
1990, as amended, and the Rehabilitation Act of 1973 (which prohibit discrimination based upon
disability); the Family and Medical Leave Act of 1993 (which prohibits discrimination based on
requesting or taking a family or medical leave); Section 1981 of the Civil Rights Act of 1866
(which prohibits discrimination based upon race); Section 1985(3) of the Civil Rights Act of 1871
(which prohibits conspiracies to discriminate); the Employee Retirement Income Security Act of
1974, as amended (which prohibits discrimination with regard to benefits); and any other federal,
state or local laws against discrimination; or any other federal, state, or local statute, or
common law relating to employment, wages, hours, or any other terms and conditions of employment.
This includes a release by the Executive of any claims for wrongful discharge, breach of contract,
torts or any other claims in any way related to the Executive’s employment with or resignation or
termination from the Company and its subsidiaries and affiliates, as applicable.
This release also includes a release of any claims for age discrimination under the Age
Discrimination in Employment Act, as amended (“ADEA”). The ADEA requires that the Executive be
advised to consult with an attorney before the Executive waives any claim under ADEA. In addition,
the ADEA provides the Executive with at least 21 days to decide whether to waive claims under ADEA
and seven days after the Executive signs the Agreement to revoke that waiver.
This release does not release Parent or the Company from any obligations concerning any
remaining rights the Executive has pursuant to the Consulting Agreement between the parties dated
as of January 27, 2009 (the “Consulting Agreement”), the Change of Control Agreement, under this
Agreement, or under any other Company Arrangement (as described in the Consulting Agreement),
including, without limitation, any rights to indemnification and/or advancement of expenses by the
Company or its affiliates pursuant to the Company’s (or any affiliate’s) corporate documents or
applicable law, or coverage under any applicable directors’ and officers’ liability insurance
policies. This release does not release claims that cannot be released as a matter of law,
including, but not limited to, Executive’s right to file a charge with or participate in a charge
by the Equal Employment Opportunity Commission.
Additionally, the Company agrees to discharge and release the Executive and the Executive’s
heirs from any claims, demands, and/or causes of action whatsoever, presently known or unknown,
that are based upon facts or acts occurring prior to the date of this Agreement, including, but not
limited to, any claim, matter or action related to the Executive’s employment or affiliation with,
or termination or separation from the Company; provided that such release shall not release the
Executive with respect to any act by the Executive which is proven to be a felony under U.S.
Federal or applicable state law and which relates to the business of the
Company or any of its subsidiaries. As of the date of this Agreement, the Company represents
that it knows of no act by the Executive which would be deemed to be a felony under U.S. Federal or
applicable state law which relates to the business of the Company. Nothing in this Release is
intended to waive or release Consultant from any and all obligations to Company or Parent under any
confidentiality, proprietary information or non-disclosure agreement, or any obligation created by
statutory or common law to protect any intellectual property or proprietary information of Company
or Parent.
4. This Agreement is not an admission by either the Executive or the Company of any wrongdoing
or liability.
5. The Executive waives any right to reinstatement or future employment with the Company and
its subsidiaries and affiliates following the Executive’s separation from the Company and its
subsidiaries and affiliates on the Termination Date. Nothing herein shall prevent the Executive
from providing services to the Company pursuant to the Consulting Agreement.
6. This Agreement shall be governed by and construed in accordance with the laws of the State
of California, without reference to the principles of conflict of laws. Exclusive jurisdiction
with respect to any legal proceeding against Executive, Parent, Company, or any successor or assign
brought concerning any subject matter contained in this Agreement shall be settled by arbitration
as provided in the Change of Control Agreement.
7. Each of the sections contained in this Agreement shall be enforceable independently of
every other section in this Agreement, and the invalidity or non-enforceability of any section
shall not invalidate or render unenforceable any other section contained in this Agreement.
8. It is further understood that for a period of 7 days following the execution of this
Agreement in duplicate originals, the Executive may revoke this Agreement, and this Agreement shall
not become effective or enforceable until the revocation period has expired. No revocation of this
Agreement by the Executive shall be effective unless the Company has received, within the 7-day
revocation period, written notice of his revocation of this Agreement.
9. This Agreement has been entered into voluntarily and not as a result of coercion, duress,
or undue influence. The Executive acknowledges that the Executive has read and fully understands
the terms of this Agreement and has been advised to consult with an attorney before executing this
Agreement. Additionally, the Executive acknowledges that the Executive has been afforded the
opportunity of at least 21 days to consider this Agreement.
Consultant is over the age of forty (40) years, and in accordance with the Age Discrimination
in Employment Act and Older Workers’ Benefit Protection Act (collectively, the “Act”), he
acknowledges that:
| (a) | He has been advised in writing to consult with an attorney prior to executing this Release, and has had the opportunity to do so; | ||
| (b) | He is aware of certain rights to which he may be entitled under the Act; | ||
| (c) | In exchange for executing this Release, Consultant will receive severance pay to which he would otherwise not be entitled, and in addition to the compensation and benefits that he earned as an employee of Company; | ||
| (d) | By signing this Agreement, he will not waive rights or claims under the Act which may arise after the execution of this Agreement; | ||
| (e) | He has been given a period of at least 21 days to consider this Release, and understands that if he does not sign this Release he will not receive the severance pay described in paragraph 2 above; and | ||
| (f) | Executive further acknowledges that he has a period of seven days from the date of execution in which to revoke this Release by written notice to Xxxxx Xxxxxxxx, Parent’s VP of HR. In the event Consultant does not exercise his right to revoke this Release, the Release shall become effective on the date immediately following the seven day revocation period described above. |
The parties to this Agreement have executed this Agreement as of the day and year first written above.
| BOOKHAM INCORPORATED | ||||||||||||
| By: |
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| Name: |
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Title: |
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| AVANEX CORPORATION | ||||||||||||
| By: |
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| Name: |
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Title: |
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| XXXXXXXX XXXXXXXXXX | ||||||||||||
